La hereditary reserve refers to the portion of an estate that, in the context of an inheritance, is reserved for the children or, failing that, the surviving spouse. This principle was established in France to prevent people from choosing to disinherit completely their descendants.
What is the hereditary reserve?
A person's estate is divided into two parts: the reserved portion and the quota available. While the donor can freely dispose of the latter to favor a third party in his estate, the reserved portion will necessarily go to certain heirs, regardless of the relationship they had with the deceased.
Who are the compulsory heirs?
These heirs, protected by law, are the forced heirs. They are the children of the deceased and their descendants, or in the absence of children, of the surviving spouseIn principle, inheritance law, which defines the order of priority for heirs, stipulates that they receive the entirety of the deceased person's estate. However, during their lifetime, the deceased may have written a will or made a gift inter vivos. In this case, they may have... favoring a third : an heir not being of first order, a friend, a foundation, an association… The law then provides for reserving a minimum share, called the reserved portion, for the forced heirs.
How is the reserved portion of an estate calculated?
The value of the reserved portion of the estate is estimated on the day of death after an inventory of the estate's assets. It depends in particular on whether or not there are descendants, and if so, how many. If the deceased has childrenRegardless of their status (whether or not they are from the deceased's last marriage), the reserved portion of the estate amounts to:
- Half of the estate if the deceased has only one child.
- 2/3 of the assets if he has two children.
- 3/4 of the assets if he has three or more children.
In the event that the deceased leaves no trace no descendants, a reserved portion corresponding to a quarter of his assets goes to the surviving spouse.
The reserved portion of the estate and the disposable portion
The disposable portion is the remaining share of the estate. after subtraction of the reserved portion of the estate. An individual preparing their estate can freely allocate this portion to the beneficiary(ies) of their choice. This part of the inheritance rights and assets can be fixed:
- By donation The property is then transferred before death.
- By bequest (will) : transmission only occurs after death.
Note: The law of August 1, 1972 introduced the concept of special disposable portion between spousesThis allows the surviving spouse to be given an advantage before the inheritance is settled. It can be transferred to them, through a gift or will:
- The equivalent of the ordinary disposable portion,
- One quarter of the estate in full ownership and three quarters in usufruct,
- Or the entire estate in usufruct.
The waiver of the right to bring an action for reduction
At the opening of the succession, when it appears that the value of a gifted or bequeathed asset exceeds the disposable portion, the gift must be reduced, which means that the beneficiary must compensate the forced heirs so that their reserved share is reconstituted.
To sign the waiver of the right to a reduction claim, you must be of legal age and possess the mental capacity to make a fully informed decision. The document must meet several requirements. formalities required by lawspecifying in particular:
- The identity of the forced heir who waives a right of action for reduction,
- What he is giving up,
- The identity of the beneficiary of the bequeathed or endowed property,
- As well as the legal consequences of this waiver.
By establishing such a document, the forced heir undertakes to not to contest the bequests and donations that could deprive him of part or all of his reserved share. The donor or testator must also accept the decision of the forced heir to renounce his inheritance rights.
Can we reverse our decision?
It is possible to terminate the inheritance agreement by taking legal action. For this to happen, the situation must correspond to one of the following three cases, mentioned in the Civil Code:
- The prospective donor is not fulfilling his maintenance obligations towards the forced heir.
- The beneficiary of the renunciation has committed a crime or offense against the forced heir.
- The heir is in financial difficulty at the time of the opening of the succession, but this state would disappear if he had not renounced his reserved rights.
Is it possible to circumvent the forced heirship rules?
Thanks to the forced heirship rules, direct descendants, and sometimes the surviving spouse, have a right to a share of the deceased's estate. While it is mandatory to respect these rules, it is possible to reduce its amountTo do this, you need to invest funds in a life insurance policy, which allows you to transfer capital. outside of inheritance.
The case of life insurance
The sums present on a life insurance accountand payable to the beneficiary after the subscriber's death, are exempt from the rules of inclusion in the estate for inheritance tax purposes, as well as from reduction for infringement of the heirs' reserved portion. But beware: if the heirs entitled to a reserved portion consider themselves wronged, they have the option of asserting the " obviously exaggerated "Life insurance premiums. After assessment, a judge may reintegrate all or part of the premiums into the estate."
What if the deceased resided abroad?
Until very recently, when a French citizen resided and died abroad, they could disregard the principle of forced heirship if it did not exist in their country of residence. However, since an article in the law of August 24, 2021, the disinherited heir can "make a claim." compensatory levy on existing assets located in France." Thus, he can reconstruct the share that should have been due to him under French law.
Thanks to the forced heirship rule, it is impossible in France to disinherit your childrenIf a forced heir can renounce his share before the death of the donor or testator (with the latter's agreement), he remains protected, whether or not there is a will.
