The reserved portion limits the application of deceased’s will by reserving a portion of the estate to certain categories of heirs, called ‘mandatory heirs’ (‘héritiers réservataires’).
In the presence of these heirs, the succession is divided in two parts: an imperative fraction “the reserved portion” and “the available portion” that can freely be given to anyone.
The reserved portion allows the protection of close family and guarantees the respect of minimal succession equality.
1) Compulsory heirs: the reserved portion in inheritance
The rate of the reserved portion varies according to the number of compulsory heirs.
The descendants of the deceased acquire the quality of compulsory heir. To benefit from the reserved portion, they must however come to the succession.
It is in the absence of descendants of the deceased that the surviving spouse obtains the quality of compulsory heir.
Article 913 of the French civil code specifies the rate of the available portion in the presence of children that are compulsory heirs:
|Number of children
|Rate of the available portion
|Rate of the reserved portion
|3 children or more
The available portion represents the fraction of the succession that the deceased can freely transfer by bequests to any person.
If one of the descendants is predeceased, the latter’s descendants have a right to the reserved portion. The renouncing heir is not counted in the number of rightful descendants, except if he or she is represented or is not held to the reduction of bequests.
The unworthy heir is not part of the compulsory heirs except if his descendants represent him.
In the presence of descendants, the surviving spouse possesses certain rights that can have consequences on the reserved portion. Indeed, when all the inheriting children belong to the couple, the spouse can choose the totality of the usufruct of the assets of the succession or a quarter of the assets in full ownership (article 757 of the French civil code). The children will thus receive either the totality of the succession in bare-ownership or ¾ of the assets in full ownership.
When all the children of the deceased do not belong to both spouses, the surviving spouse has a right to ¼ of the succession in full ownership.
In situations where the deceased has no descendants, the compulsory heir becomes the surviving spouse that possesses a reserved portion of ¼ of the succession.
2) Action in reduction of the donations in inheritance
The right to a reserved portion is a right of public order.
For this reason, when the bequests that are consented to by the deceased exceed the amount of the reserved portion, the heirs can claim an action in reduction. The reduction must restore the amount of the reserved portion.
However, the compulsory heir is not held to this action and can choose to renounce to it.
It is necessary to calculate the reserved portion in order to verify if the consented bequests by the deceased exceed the available portion or not. The reserved portion is calculated on the mass of existing assets at the time of the death, after the deduction of debts and charges to which the asset transmitted by the donation is reduced.
The existing asset entails the assets left by the deceased at his death and those transferred by bequests. They are valuated at the day of the death.
Donations returned to the mass concern all forms of donations including joint donations (“donations-partage”) after the deduction of debts and charges they apply to. They are valuated according to their state at the time of the donation and their value at the opening of the succession.
The valuation of these assets allows the determination of the amount of the available portion in accordance with the rights of compulsory heirs.
If the value of the donations at the day of the death exceeds the available portion and prevents the compulsory heirs from obtaining their portion of the reserve, the donation will be reduced. It will not be reduced when the value of donations is inferior or equal to the available portion.
The reduction is carried out at the request of a compulsory heir. The action in reduction of the donation is limited to five years starting from the opening of the succession or two years starting from the day when the heirs were aware of the breach carried on their reserved portion (article 921 of the French civil code).
The reduction is settled in value. The beneficiary of the donation keeps the asset however must compensates the heirs (article 924 of the French civil code). It is settled during the distribution of assets except if it is otherwise decided by the joint heirs.
It remains possible to settle the reduction in nature if the asset is free of any charge or occupation (article 924-1 of the French civil code).
Maître Frédéric Michel – Fairfield Law firm | Lawyer in Cannes