French marriage rules could help (or stop) your partner inheriting your overseas property, writes Stone King’s Alexandra Weatherdon.
If you’re planning to buy a home in France you may want to ensure that your partner will inherit the property when you pass away. This could be done by making an election in your will (if you are an English or Welsh national), or otherwise by a marriage contract called a Matrimonial Property Régime (MPR) which governs how your assets will pass between you and your partner on divorce or on death. Without a will or a MPR, at least a share of your French home – and your other assets such as bank accounts and business interests – could pass directly to your children under the country’s forced heirship rules.
You can read about the rules concerning wills and the EU Regulation (Brussels IV) elsewhere, this article will be concerned purely with MPRs.
In France it is routine to enter into a marriage contract (MPR) when you ‘tie the knot’ and if you don’t choose one, a default régime will be imposed on you. The good news is that you can change to a different régime as long as you have been married for two years and haven’t changed a previous marriage regime in the past 24 months – although it is important to appreciate that there can be restrictions on changing régime if the purpose is to avoid the French forced heirship rules. But how do you know which of France’s three main French marriage régimes is right for you and your partner?
Making sense of French marriage regimes
Separation of assets
If you married in England or Wales and own French property, you will automatically fall under what’s called Le régime de séparation de biens (separation of assets), unless you specify an alternative regime. Under this regime, each partner is treated as owning their own individual assets separately from the other. Any jointly held assets are treated as being owned in equal shares unless otherwise specified.
Each spouse remains the owner of any property held in their name, both before and during marriage. This includes assets which have been bought or inherited. On divorce each party leaves the marriage with their ‘own’ assets and on death each party can leave their assets to whomever they wish – subject, of course, to any other rights (such as forced heirship) that govern the devolution of the property.
Community of acquisitions
The default position for couples married in France, on the other hand is Le régime de communauté réduite aux acquêts (community of acquisitions regime), where each partner retains property which is acquired before the marriage and they also keep in their sole name any inherited property. However, any property acquired after the marriage is jointly owned meaning it is split equally on death.
Universal community of property
Here, all property acquired after marriage under Le régime de communauté universelle (Universal community of property) is jointly owned and you can choose whether property which is held individually before marriage is brought into common ownership. You and your partner can decide this when you enter into the contract. Under this regime the property held in the ‘common fund’ would pass automatically to your partner after your death. This option is often used to get around the forced heirship rules and prevent children from inheriting property. As intimated above, this could be challenged through the courts by children who have been disinherited but you can ask children to renounce these rights when signing the contract if they are old enough to do so.
You may well have been advised by your French notaire to enter into a marriage contract when buying your French property. However, it’s not uncommon in the ‘whirlwind’ of buying a house to have filed it away with the other paperwork and forgotten all about it.
It is important to remember that matrimonial property regimes could take precedence over your will over at least some of your assets and so if your lawyer has not discussed MPRs with you when making your will, particularly if you are planning on making an election for the laws of the country of your nationality to apply to the devolution (who gets what) of your estate, you should ask; ‘why not?’
Equally, matrimonial property regimes can be highly effective planning tools to help you ensure that your loved ones get your property when you die.So when it comes to planning the devolution of your estate, you should consider what options are available to you.It’s crucial, however, that you first seek expert advice from an experienced lawyer who specialises in working with French notaires.
For more information contact Stone King’s international team on 01225 337599 or email firstname.lastname@example.org