Navigating forced heirship in Scotland and France

Scotland's close association with France dates back to 1292 and the Auld Alliance or la "Vielle Alliance", a treaty between Scotland and France in terms of which Scotland aligned itself to France against England. Though never formally revoked, the Auld Alliance was replaced with the Treaty of Edinburgh – an Anglo-Scottish agreement – but the friendship and mutual respect between Scotland and France continues to endure. As General Charles de Gaulle said about Scotland in 1942 "what Frenchmen feel is that no people have ever been more generous than yours with its friendship".

Scottish/French partnerships have been in vogue for centuries. Mary, Queen of Scots, was the daughter of a French woman, spent her childhood in the Loire and married the French crown prince becoming Queen Consort of France in 1559. Today, cross border marriages between nationals of Scotland and France are commonplace and we see increasing numbers of clients with interests and assets in both jurisdictions.

While the law of succession in Scotland as compared with France is fundamentally different in many ways, legacies of the historic link between the two nations remain. Perhaps one of the most important of these in this context is the protection afforded to some on the death of a relative through rights of forced heirship.

The applicable law in cross border succession

Before we look at forced heirship in Scotland and France, it’s important to consider the private international law rules in both nations that will determine what law applies the succession of the estate of a deceased individual.

In Scotland, your domicile (the place you call "home") determines which law applies to the succession of your estate on death. Your domicile of origin (acquired at birth and generally shared with your parents) can be superseded by a domicile of choice if you move to another country with the intention of staying there permanently. French nationals living in Scotland may acquire a domicile of choice in Scotland and vice versa.

In France, the law that applies to the succession of your estate will be determined with reference to EU Regulation No.650/2012 (“Succession Regulation”) which took effect in 2015. Under the Succession Regulation, the laws of the country in which you are "habitually resident" will apply unless you have expressly elected for the law of your nationality to apply. There are estate planning opportunities here for those wishing to avoid French forced heirship rules but choice of law elections are complicated and specialist advice is crucial.

The Succession Regulation does not apply in Scotland but may still affect those Scots with assets in France. In all Franco-Scottish cross border estates, the impact of the Succession Regulation and the way in which it interacts with the Scottish concept of domicile should be considered carefully.

Forced Heirship – what is it?

Generally, an individual can leave their estate to whomever they please. However, forced heirship ensures that certain relatives (usually spouses, civil partners and children), cannot be disinherited.

Forced Heirship in Scotland

The estates of Scottish domiciled individuals will be subject to Scottish forced heirship rules known as "legal rights". Legal rights apply irrespective of whether the deceased left a will and can be claimed by the surviving spouse/civil partner and children. They apply to the deceased's worldwide net moveable estate (this would include any moveable assets owned by the deceased in France). Legal rights amount to one third or one half of the net moveable estate depending on who survives the deceased. Legal rights will apply in all cases where the deceased leaves moveable assets. Although we talk about "claiming" legal rights, they are a debt on the estate of the deceased and the executors must either pay them or obtain a discharge from those entitled to them.

Forced Heirship in France

Forced heirship rules in France divide the estate in to two parts: the legal reserve and the disposable portion. The legal reserve is the part of the estate set aside for either the spouse or the children. The disposable share is the part of the estate over which an individual has testamentary freedom and it can be distributed in terms of the deceased's will. The amount of the legal reserve will vary depending on the number of children the deceased had. Unlike legal rights, the legal reserve covers the whole estate and not just moveable assets. Another notable difference is that the spouse is only a protected heir if the deceased is not survived by children. The rules if the deceased is survived by both a spouse and children are complicated and should be considered carefully in situations where they may apply.

Droit de Prélèvement Compensatoire ("DPC")

This is a controversial domestic French law reintroducing rights of forced heirship in estates dealt with under foreign law where that foreign law does not have a forced heirship equivalent by creating a "right of compensation" for reserved heirs. The impact of the DPC on Scottish estates where legal rights apply, remains to be seen. The question as to whether the French will consider that legal rights adequately protect the reserved heirs or whether additional compensation must be paid is one that currently remains unanswered.

What is clear is that obtaining specialist advice early from advisers in each relevant jurisdiction in all cross-border estate planning and succession situations is imperative so that you understand the impact forced heirships rights might have on death and to ensure that your wishes are met as far as possible.