You are moving abroad: which law will govern your estate?

What does the EU Succession Regulation provide?

The Regulation applies to the succession of persons who die on or after 17 August 2015 (Article 83(1)).

• The general rule. “Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death” (Article 21(1)), even if it is not a Member State (Article 20). Where that State is a non-EU State, its conflict rules are taken into account if they refer back to the law of a Member State or on to the law of another non-EU State which would apply its own law (Article 34).
• The choice of law. “A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.” The choice is made expressly in a declaration in the form of a disposition of property upon death, or is “demonstrated by the terms” of such a disposition (Article 22), for example by referring to specific provisions of the national law (Recital 39). It covers the whole succession and excludes renvoi (Article 34(2)).
• Agreements as to succession. The parties may submit the agreement to the law which the person concerned could have chosen under Article 22 (Article 25(3)).
• Form. A written will is valid if it complies, among others, with the law of the place where it was made, of the testator's nationality, domicile or habitual residence, or, for immovable property, of the place where the property is located (Article 27). States party to the Hague Convention of 5 October 1961, including France, continue to apply it (Article 75). A French national abroad may also make a holographic will under Article 970, or an authentic will in the forms used in the place where it is made (Civil Code, Art. 999, in French).
• Wills made before 17 August 2015. A will drawn up in accordance with the law the deceased could have chosen is deemed to constitute a choice of that law (Article 83(4)).
• French courts. If the deceased's habitual residence was outside the Union, French courts have jurisdiction over the whole succession where assets are located in France and the deceased was a French national (Article 10(1)(a)).

Which matters remain outside the choice of law?

• Tax. French inheritance tax depends on the tax domicile of the deceased and the heirs and on where the assets are located (CGI, Art. 750 ter, in French), subject to tax treaties. Under the France-UAE tax treaty, immovable property is taxable only in the State where it is situated and other movable property in the State of residence of the deceased (Article 17); the 1953 France-Switzerland estate tax treaty ceased to apply on 1 January 2015; for the United States, see France-US estate tax.
• Forced heirship by another route. Where the deceased or one of their children is a national of, or habitually resident in, a Member State, and the applicable law “does not allow any reserved-portion mechanism protecting children”, each child may make a compensatory levy on the existing assets located in France at the date of death, up to their reserved rights under French law (Civil Code, Art. 913, last paragraph). Separately from this levy, a notary who finds that gifts or bequests are likely to infringe the reserved portion must inform each heir concerned of their right to seek their abatement (Art. 921).
• Assets outside the succession. Matrimonial property, life insurance, the creation and administration of trusts and provisions of articles of association in principle follow their own rules (Article 1(2)), without prejudice to the restoration and abatement of gifts, which fall under the succession law (Article 23(2)(i)). Under French law, life insurance proceeds are in principle not subject to restoration or abatement, unless the premiums were manifestly excessive (Insurance Code, Art. L. 132-13, in French).
• The country where the assets are. Its special rules on certain immovable property or businesses continue to apply (Article 30), and the court may decline to rule on assets located in a non-EU State that would not recognise its decision (Article 12).

How do courts assess habitual residence and the choice of law?

• Paris or New York. For an American who spent long periods in Paris, his professional life, assets and tax domicile in New York determined his habitual residence; the Cour de cassation upheld the lack of jurisdiction of the French courts (Cass. 1re civ., 29 May 2019, no. 18-13.383, published).
• Less than five months in Portugal. For a French national who settled in Portugal on 28 June 2016 and died on 20 November of the same year, habitual residence remained in France: late start in learning Portuguese, registration on the French electoral roll, a house kept in France, family and friends in France (Cass. 1re civ., 12 July 2023, nos. 21-10.905 and 21-11.041).
• A bequest of usufruct is not a choice. A French-Iranian dual national who had moved back to Iran had bequeathed the usufruct of his estate to his wife in 1997. The court refused to treat this as a choice of French law under Article 83(4), usufruct being known to Iranian law, and applied the Iranian law of the last habitual residence (CA Aix-en-Provence, 19 June 2024, no. 23/14969).
• A law without forced heirship is not contrary to public policy. For a succession opened in 2004, Californian law, which has no reserved portion, can only be set aside if its concrete application offends essential principles, such as the economic hardship of a child (Cass. 1re civ., 27 September 2017, no. 16-13.151, published). The Article 913 levy has since applied to successions opened on or after 1 November 2021.
• A choice open to all. A national of a non-EU State may choose their national law, unless a bilateral convention predating the Regulation rules it out (CJEU, 12 October 2023, OP, C-21/22). A contract providing for the transfer of property on death is an agreement as to succession (CJEU, 9 September 2021, UM, C-277/20). A gift of future property between spouses may, depending on its terms, be characterised in the same way: as a precaution, in an international setting the firm pairs it with a choice of law (Article 25(3)) or an equivalent bequest.