Protecting your partner in the case of inheritance

Under French inheritance law which dates back to Napoleonic times, a child cannot be disinherited. One may think that this is very fair indeed, though with more and more mixed marriages and children from different families, this really can cause a headache. If a partner was to die, then half of the half owned by that partner should, under law, go to the children of the deceased. However, the law also recognizes the need to protect your partner as it wouldn’t be fair to expect the bereaved to have their home taken away from them. There have been cases where this has happened so be prepared and make sure that you have taken all the necessary steps to cover the interests of your partner.

It really is a complex issue. The couple should seek the advice of a notaire who will be able to advise in their particular case, although in general, the best way to get around the fact that the children inherit, rather than the spouse, is for each partner to take out a Will which states that the spouse can have use of the property for the rest of his/her life. This gets rather complicated if the spouse decides to sell up and move on. The reason for this is that the property is not entirely owned by the spouse who is left. She/he only have use of that property. Thus, if the property is sold, the child or children must be paid their proportion of any money raised from the sale, which will be specified by the notaire.

There are other ways of protecting your spouse in the event of joint ownership though these are limited. For instance, the Clause Tantine. This is so that a couple can buy a house jointly and from the very beginning agree that if one of the owners dies before the other, the property will be the remaining partner’s property as if the dead partner never existed. It seems to be a workaround, but beware. With a clause tantine in force, inheritance taxes will be expensive, especially if the house has a value of more than seventy six thousand Euros. The difference in tax above this rate is enormous and the person left can be left with an inheritance tax of up to sixty percent which is enormous.

Back in the sixties, many people reverted to the clause tantine believing that it covered their interest in the event of one partner dying. People who had kids from different marriages were advised by notaires that this was a way round the problem. If a clause tantine was taken out, the age difference between the parties should be marginal so that it cannot be anticipated which partner would die first. This was discretionary on the part of the notaire but because of the inheritance laws being so strict, it would be unlikely that a couple with huge age differences would be covered under the clause.

The best way forward is really to think like the French and have a donation entre epouse, which means allowing your partner to have use of the house for the rest of his/her life. That’s the way that the French do it, and it does not mean that children inherit nothing. It respects the laws which have been in place since Napoleon decided that children should never be disinherited and makes perfect sense.

Although there are laws coming which allow for flexibility, this will be flexibility at a price. It is anticipated that the charges which will be levied upon the survivor will be huge. The new law which is expected to come into force in 2015 means that English people buying homes in France can use English law to decide who they leave their property to. This may sound very appealing, but the French are being very canny with this move. They are aware that the inheritance laws are causing a problem to people who come to France to live, but although they are exercising some kind of flexibility of approach, it comes at a massive cost of 60 percent inheritance tax, if the inheritors chosen are not direct inheritors. 

It can be seen from this that the French way is the sensible way to go. If you own a house jointly with a partner who has one child, that child will always be entitled to one half of the half owned by the deceased partner, unless covered under a tantine, but putting inheritance on the back shelf by making a donation for life to your spouse really is the best solution. Lodging your will with a lawyer will cost you a small token amount and this is used to register your will so that when you die, a central registry can be accessed by whoever is dealing with the estate.