On 4 June 2026, the EU Commission issued its response to complaints received regarding the 2021 update to Article 913 of the French Civil Code, which introduced the droit de prélèvement compensatoire (“DPC”). The Commission considers the matter with France to be closed, signaling that the legal uncertainty created by the DPC is resolved following the French Government's explanations.
For UK nationals who have chosen the law of England & Wales to govern their succession under the EU Succession Regulation (“the Regulation"), the decision goes only so far to resolve the uncertainty surrounding French/English cross-border estates since France introduced the DPC.
The Regulation and the promise of certainty
The Regulation, in force across most European member states since 2015, was conceived as an ambitious harmonisation project. Its central premise is that a single law should govern the succession of the deceased’s estate as a whole, regardless of where the assets are located.
Under Article 21, that law is, by default, the law of the State in which the deceased was habitually resident at death. This is subject to the rules of renvoi under Article 34. The law applicable to the estate of a person habitually resident in England would be the law of England & Wales. If that testator owns a holiday home in France, the law of England & Wales will apply French law to the succession of that asset: under the terms of Article 34, France will accept that renvoi. The application of French law to the holiday home in this situation can create difficulties for those who would like to avoid the application of strict forced heirship rules there.
Under Article 22, however, an individual may elect the law of their nationality to govern their succession. Where a valid choice of law election has been made, the concept of renvoi is expressly excluded. The chosen law applies to the estate without any reference to private international law rules. For UK nationals with connections to European member states, this election has been a vital planning tool: by choosing the law of England & Wales, those who have built lives or acquired property in France have been able to step outside French forced heirship rules and ensure their estate passes in accordance with their wishes.
Article 913 and the genesis of Commission’s response
France's amendment to Article 913 disrupted the settled position created by the Regulation. It introduces a right of compensation in favour of children who would otherwise be unprotected from disinheritance under the foreign applicable law. Broadly, where (i) the deceased or any of their children was, at death, an EU national or habitually resident in an EU Member State, and (ii) the foreign applicable law contains no "reserve mechanism" protecting the children, those children may claim against the deceased's French assets.
The complaints lodged with the European Commission argued, in essence, that the DPC undermines the very purpose of the Regulation by overriding a Regulation-compliant choice of law election through domestic French legislation.
The Commission’s response
In its explanations, accepted by the Commission, France relies on Article 35 of the Regulation, which permits a Member State to disapply the chosen foreign law where its application would be "manifestly incompatible with the public policy (ordre public) of the forum". The DPC has been of particular concern to UK nationals who have chosen English & Welsh law under Article 22 because, subject to the limited and discretionary protection afforded to children under the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act"), an English testator enjoys testamentary freedom and can leave their assets as they wish on death. Up to now, it has generally been understood that the 1975 Act would not amount to a protection mechanism sufficient to disapply the DPC. The French Government has clarified that where the chosen foreign law provides a mechanism for protecting children the DPC will not be triggered and offers the 1975 Act as an example of such protection.
The 1975 Act's domicile restriction
While the Commission’s response will offer some comfort to UK nationals concerned about the DPC, many questions remain unanswered. The 1975 Act is, by its express terms, available only in respect of the estate of a person who dies domiciled in England and Wales. Domicile, in the English common law sense, is a connecting factor distinct from nationality.
A UK national who has retired to France and acquired a French domicile of choice is, despite their British nationality, no longer domiciled in England and Wales and so falls outside the 1975 Act's protective reach. This raises the question whether a valid choice of law election in favour of England & Wales brings with it application of the 1975 Act. The French Government’s explanation suggests that, assuming a valid election is made, France will apply English & Welsh succession law - including the 1975 Act - to the succession, consistent with the Regulation's intention that an election brings application of the chosen law as a whole.
There remains a category of testator - a UK national who has competently elected English and Welsh law under the Regulation but who is not, on the date of death, domiciled in England and Wales — for whom the practical position remains uncertain.
A French notaire faced with such an estate, it would seem, has two options:-
- To conclude that, by reason of the testator’s domicile, the foreign applicable law contains no "reserve mechanism" for the children and that the DPC must accordingly be triggered;
- To determine that the 1975 Act provides sufficient protection on the basis that the choice of law election means application of the whole law of England and Wales (including the 1975 Act).
This may seem a curious result, but it mirrors the approach notaires have been seen to take when applying Scots law to the French assets of a UK (Scottish) national who is French-domiciled at death. Taking the case of an English national with a French domicile, the French court would have jurisdiction to rule on the succession as a whole where the deceased was habitually resident in France. Strangely, a notaire may therefore consider that a French court would seek to give effect to the 1975 Act, even if a court in England & Wales would decline to hear such a claim on the basis of the testator’s French domicile. This raises difficult questions about a notaire’s ability to emulate the discretionary approach of an English court - a challenge quite different from cases involving a Scottish national French domiciliary (discussed below). Whilst outside the scope of this article, it is common for English courts to order that trusts and other structures be used to meet the standard of provision required for a 1975 Act claimant. Such structures would however likely have no place, and could even prove damaging, in a French setting. The question must therefore be asked: can the French system do justice to the purpose of the 1975 Act legislation, or must the DPC be triggered in such cases?
A footnote on the Scottish position
The Scottish position underscores rather than resolves the difficulty. Scots law has no equivalent of the 1975 Act. Instead, the regime protecting certain heirs takes the form of "legal rights" - a fixed entitlement of the surviving spouse or civil partner and children to a share of the deceased's net worldwide moveable estate. Legal rights attach only to the moveable estate of a person who died domiciled in Scotland. Assuming a valid choice of law election brings application of the chosen law as a whole, France will apply Scottish legal rights even where the deceased died domiciled outside Scotland, and the DPC is not triggered. In the authors’ experience, this is approach generally taken by French notaires in cases involving a French domiciled UK national deceased who has made a valid choice of law election in favour of Scotland.
Practical implications
The Commission’s response confirms it is unwilling to interfere with the amendment to Article 913. For UK nationals with French assets, the principal practical takeaways are:
- A choice of English & Welsh law in the will remains worthwhile, but it is not, on its own, necessarily a complete answer to the risk of a DPC claim.
- Estate planning for UK clients with French assets should consider which law will govern the succession, and whether the protective mechanisms of that chosen law will in practice be available to the testator's family on death.
- As always for those clients who have connections to the United Kingdom and France - early, coordinated advice from specialist advisers in both jurisdictions is essential.
More than ten years on from its entry into force, the Regulation has materially improved cross-border estate planning in Europe. While the Commission’s response provides welcome clarification, important questions remain unanswered. For now, it falls to practitioners to identify the challenges and navigate the issues arising in cross-border estates between the UK and France.
Get in touch
If you are a UK national with assets or family connections in France, and you would like to review your estate planning matters, please contact our Personal & Family team.
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