Legal advice : The lawyer can advise heirs or executors on the legal aspects of the inheritance, including understanding the will, if there is one, or the laws of inheritance in the absence of a will. The goal is to ensure that the deceased's last wishes are correctly executed.
Advice on rights and obligations : The lawyer can advise heirs or executors on their rights and obligations. He can also guide them through the process of distributing assets and property.
Production of legal documents The lawyer can draft necessary documents for the settlement of the inheritance, such as probate applications or documents required for the transfer of assets.
Dispute resolution : Conflicts may arise among heirs or executors. The lawyer can represent them in these disputes and try to reach an amicable resolution or, if necessary, represent them in court.
Debt and tax management : The lawyer helps settle the deceased's debts and ensures that all tax obligations are fulfilled, including inheritance declarations and tax payments.
Inheritance planning advice : Before death, a lawyer can assist a person in planning their inheritance, including writing wills, creating trusts, and other strategies to minimize taxes and facilitate the transfer of wealth.
Tax planning advice : Inheritances may be subject to significant taxes. A lawyer can advise on inheritance tax planning, including how to use exemptions and tax credits to reduce taxes payable.
Asset management : A lawyer can help manage inheritance assets, including real estate, bank accounts, and investments, until they are distributed to heirs.
For a long time, the surviving partner has been marginalized as the "poor relation" by the authors of the Civil Code. Indeed, these authors aimed to ensure that the deceased's assets remained within their family. Consequently, it was inconceivable for this inheritance to change hands simply due to the presence of a surviving partner. The only scenario in which the surviving partner could inherit from their deceased partner's estate was in the total absence of any relatives in the line of inheritance
As a result, couples began seeking remedies to this situation by establishing marital regimes before their marriage that would be more favorable to the surviving partner in the event of their partner's death. Many laws have indeed favored these mechanisms, reflecting an evolution in societal norms regarding the rights of the surviving partner in matters of inheritance.
The surviving partner faces the following inheritance-related issues:
When the deceased has no children from a previous marriage or no children in common with the surviving partner, the regime is very favorable to the latter. Article 767-2 of the Civil Code and the Law of April 26, 1976, establish the following principle: The surviving partner inherits the entirety of the estate.
➝ However, it is important to note that the application of Article 767-2 is subject to the absence of a marital regime of legal separation, which excludes shared life and prevents the surviving partner from inheriting (Article 767 of the Civil Code).
➝ If the deceased prepared their inheritance through a will, they may also prevent the surviving partner from inheriting. The surviving partner is not a reserved heir. If the deceased excludes them from their inheritance by will, they cannot contest it.
➝ The presence of common children between the surviving partner and the deceased is the most common scenario in practice. In the absence of a specific marital regime such as universal community property, the legal regime offers two options to the surviving partner in competition with the common children. Article 767-1 of the Civil Code provides them :
- The usufruct of the property inhabited jointly by the partners and the movable property within it : The property concerned must have been the couple's residence during the deceased's lifetime. It is also necessary for the deceased to be the owner of the property or a co-owner with the surviving partner. This usufruct is considered a life usufruct since it lasts only until the death of the relevant partner, who can enjoy it and receive its benefits.
It is worth noting that in the event of the widower or widow's remarriage, the children can object to the continuation of the usufruct. By unanimous decision, they can convert this usufruct into a lump sum.
- The share of the legitimate child taking the least : This option is often chosen by spouses who do not own property. This share of the legitimate child taking the least corresponds to a determined percentage of the estate in full ownership and the usufruct of the surplus.
This share will therefore correspond to that of the child receiving the smallest legal inheritance share. Example : In the presence of two children, each of their reserved shares is 1/3.
➝ It is therefore customary to say that there is a special reserve between partners. As a result, the presence of the surviving partner modifies the portion of the children's legal reserve. Moreover, the composition of this special reserve will also take into account the existence of liberalities (gifts or bequests) made by the deceased during their lifetime to their partner. These liberalities will necessarily exceed the legal rate of the special reserve provided for in Article 767-1 of the Civil Code. It is thus possible for the surviving partner to have a usufruct share in the children's legal reserve, who will be mere bare owners. However, the legislator does not consider them disadvantaged since upon the surviving partner's death, their legal reserve will be respected.
When the couple married under the regime of universal community property and one of the partners has children from a previous marriage, the law grants protection to these children to prevent donations to the partner that would deprive them of their inheritance rights.
The deceased's estate will be open but cannot be awarded to the children due to the lack of assets remaining in the community. The children are therefore disadvantaged. When there are children from a previous marriage, they are deprived of their parent's inheritance through the mechanism of universal community property but cannot inherit from the surviving partner with whom they have no filial relationship.
The matrimonial advantage possessed by the surviving partner, being the difference between the value they received under the marital regime and what the legal regime would have attributed to them, puts them in an advantageous position against the deceased's children.
A solution is available to children from the first marriage to restore balance. This is the action for reduction. This action allows children from a first marriage to obtain a reduction of this matrimonial advantage when it exceeds the legal disposable portion in order to regain their rights. They must bring this action within a period of 30 years from the death of their remarried paren
