Brussels IV: Choosing Your National Law for Your French Estate

What Brussels IV (the EU Succession Regulation) is

Brussels IV is the everyday name for Regulation (EU) No 650/2012, the EU Succession Regulation. It is a single set of conflict-of-law rules that decides, for a cross-border death, which country's succession law governs the estate, which country's courts have jurisdiction, and how a succession settled in one member state is recognised in another. It applies to the estate of anyone who dies on or after 17 August 2015 (EUR-Lex, Regulation 650/2012, Articles 83 and 84). For a foreign owner of French property, its importance is simple: it is the instrument that can let you choose your own national law to govern your French estate instead of French forced heirship.

The Regulation did two things that matter to anyone with assets in France. First, it replaced the old French conflict rule — which split an estate, applying French law to French real estate and the law of the deceased's domicile to movable property — with a single connecting factor for the whole succession. Second, it introduced a right to choose. Where the default rule would apply the law of the country you live in, the Regulation lets you elect the law of your nationality instead, and that election governs your estate as a whole: real estate, bank accounts, shares, everything, wherever situated within the participating states.

The default rule is the starting point. In the absence of any choice, "the law of the State in which the deceased had his habitual residence at the time of death shall apply to the whole of the succession" (Article 21, Regulation 650/2012). So a British or American national who has retired to France and made it their home will, by default, have French succession law applied to their entire estate — including French forced heirship — because France is where they habitually reside. That default is exactly what many foreign owners want to escape, and the Regulation gives them the mechanism to do so.

Which countries take part

The Regulation binds most of the EU, but not all of it. Denmark and Ireland do not participate: "cross-border succession procedures handled by the authorities of these two Member States will continue to be governed by their national rules" (European e-Justice Portal). The United Kingdom never opted in, and since Brexit it is a third country for these purposes. France, by contrast, is a full participating state, and its notaires and courts apply the Regulation to every cross-border estate they handle. That is the key point for a foreign owner of French property: it does not matter whether your own country takes part — what matters is that France does, and France will apply the Regulation, including your right of choice, to your French estate.

The European Certificate of Succession

The Regulation also created a practical tool that heirs of a cross-border estate rely on: the European Certificate of Succession. Issued by the authority handling the succession, this document "can be used by heirs, legatees, executors of wills and administrators of the estate to prove their status and exercise their rights or powers in other Member States" (European e-Justice Portal; Articles 62 and 63 of the Regulation). For a family whose assets and heirs straddle a border, it removes much of the friction of proving who is entitled to what in a second country, and a French notaire can issue one as part of settling a French estate.

How the choice-of-law election works

The election — lawyers call it professio juris — is the heart of Brussels IV for estate planning. Article 22 of the Regulation provides that "a person may choose the law of the State whose nationality he possesses at the time of making the choice" to govern the whole of their succession (Article 22, Regulation 650/2012). You are not choosing court by court or asset by asset; you are designating one national law to govern your entire estate, displacing the default law of your habitual residence.

Three features define how the election works, and each one matters in practice. The choice is limited to a law of your nationality — you cannot pick a law at random for its favourable rules; it must be the law of a country whose nationality you hold. Where you hold more than one nationality, you may choose the law of any of them. The choice governs the succession as a whole, so you cannot leave your French house to French law and your English portfolio to English law; one law applies to the entire estate. And the choice is made by you, in your lifetime, in a will or a declaration that meets the Regulation's requirements — an heir cannot make it for you after your death.

The default that the election displaces is habitual residence, and the two need to be read together. If you are a national of one country but habitually resident in France, French law governs your estate unless you choose your national law. If you are already resident in your country of nationality, the default and any election point to the same law, and the choice adds certainty rather than changing the outcome. It is the cross-border case — the foreign national living in, or owning property in, France — where the election does real work, because it lets you keep your own country's succession law rather than accept French devolution and its forced heirship.

One further point of timing deserves emphasis. Because the election must be made in your lifetime and in the right form, it is a planning step, not a remedy. A family that discovers the problem only after a death cannot elect their way out of French forced heirship; the most they can do is argue over how the default rules apply. The value of the election lies entirely in making it correctly, in advance, in a will that a French notaire will recognise.

Using it to sidestep French forced heirship

The reason foreign owners reach for Brussels IV is French forced heirship, and to see what the election achieves you have to see what it displaces. Under French law your nearest heirs are protected by the reserved portion (réserve héréditaire) — the share of the estate that must pass to them (Article 912 of the Civil Code). What is left is the freely disposable portion (quotité disponible), the only part you may give away to someone outside the protected group (Article 912, paragraph 2). Because the reserve is an absolute right, "it is impossible to disinherit a reserved heir completely" under French law.

For children the reserve is large. Article 913 of the Civil Code caps what you may dispose of by gift or will at one half of your estate where you leave one child, one third where you leave two children, and one quarter where you leave three or more. The reserve is the mirror image: one half is reserved for a single child, two thirds for two children between them, and three quarters where there are three or more. All descendants count as "children" for this purpose (Article 913-1 of the Civil Code), and the reserve is worked out by branch, so a predeceased child's share is preserved for that child's own descendants. Where there are no reserved heirs at all, French law leaves you free — gifts and legacies "may exhaust the entirety of the assets" (Article 916 of the Civil Code).

Common-law systems generally do not work this way. English law and the law of most US states rest on testamentary freedom: you may, in principle, leave your estate to whomever you wish, subject only to limited family-provision claims. That is the gap Brussels IV lets a foreign owner exploit. By electing the law of a nationality that imposes no reserve, a testator seeks to have their French estate pass under a regime of testamentary freedom rather than under Articles 912 and 913 — so that, for example, an English national could leave a French holiday home to a spouse or a chosen beneficiary rather than see three quarters of it locked up for the children.

What the election can and cannot do

Used correctly, the election substitutes your national succession law for French devolution across the whole estate. That means French forced heirship, the reserve, and the action to reduce gifts that encroach on it (Article 920 of the Civil Code) no longer govern who takes your French assets; your national rules do. For a family that wants to leave more to a surviving spouse, to skip a generation, or simply to divide an estate unequally between children, that is a genuine and lawful result the Regulation makes available.

But the election is not a blank cheque, and two limits sit on top of it. The first is that the freedom you gain is only the freedom your chosen law actually gives — if the law you elect has its own family-provision or clawback rules, you inherit those, not unlimited freedom. The second, and the more important for anyone with a European connection, is a specific clawback that French law reintroduced in 2021 precisely to blunt this planning: the compensatory levy on French-situated assets. That levy is the subject of the next section, and it is the single most common reason a Brussels IV election does not deliver what the client expected.

The 2021 compensatory levy (the catch)

The catch in any Brussels IV plan is a French rule introduced in 2021. For estates opened since 1 November 2021, where the deceased or at least one of their children is, at the time of death, a national of an EU member state or habitually resident in one, and the foreign law governing the succession allows no mechanism reserving a share for the children, each child (or their heirs) may take a compensatory levy (prélèvement compensatoire) on the assets located in France at death — so as to be restored to the reserved rights French law would have given them, up to that amount (loi 2021-1109 of 24 August 2021, Article 24; Article 913 of the Civil Code, as amended). In plain terms: choosing a foreign law that ignores forced heirship does not, where there is an EU connection, actually cut the children out.

Read the conditions carefully, because the levy applies only when all of them are met. There must be an EU connection through the deceased or a child — either EU nationality or habitual residence in an EU member state, tested at the date of death. The chosen foreign law must ignore the reserve — it must contain no mechanism protecting the children's share. And the assets clawed back are the French-situated assets existing at death. Where those conditions are satisfied, each child may levy on the French assets up to the value of the reserved share French law would have given them, effectively rebuilding their French forced-heirship entitlement out of the French estate.

The practical effect for a foreign owner is precise and often disappointing. An EU-national testator — or one with an EU-national child, or a family habitually resident in the EU — who elects English or US law to leave a French property away from their children will find that each child can nonetheless claim their French reserve back out of that French property. The election still works to displace French law for the rest of the estate and for the non-French assets, but the levy neutralises it for the French assets in exactly the scenario the client was trying to plan around. This is why an election has to be stress-tested against the family's nationalities and residence before it is relied on.

The international position outside the EU

Where the family has no EU connection — where the deceased and the children are nationals or residents of a non-EU third country — the levy does not apply, and the position is governed instead by case law. The Cour de cassation held in 2017 that a foreign law designated by the conflict rule which ignores the reserved portion is "not in itself contrary to French international public policy" and can be set aside only where its concrete application would leave the children in a situation of economic precariousness or need (Cass. civ. 27 September 2017, nos. 16-13151 and 16-17198). So for a purely non-EU estate, or for an estate opened before 1 November 2021, it remains possible to disinherit a reserved child by electing a foreign law that does not know the reserve — subject only to that narrow public-policy safety valve where a child would otherwise be left in real need.

The two regimes therefore pull in opposite directions, and which one applies turns on the EU connection. With an EU link, the 2021 levy restores the children's reserve on French assets almost automatically. Without one, the 2017 case law lets the election stand unless the excluded child is left in economic precariousness. A cross-border family often does not know, without advice, which side of that line it falls on — and the answer can change the destination of a French property entirely.

UK nationals after Brexit

UK nationals ask, understandably, whether Brexit has taken Brussels IV away from them. It has not. The election remains available to a UK national with French property, and the reason lies in how the Regulation is structured and who applies it. The United Kingdom never opted in to Regulation 650/2012, and since Brexit it is a third country. But the Regulation is applied by France, as a participating member state, to the French estates its notaires and courts settle — and nothing in the Regulation requires the nationality you choose to be that of an EU member state.

Article 22 lets "a person choose the law of the State whose nationality he possesses" (Article 22, Regulation 650/2012). That wording is not confined to EU nationalities. A British national habitually resident in France — whose estate would otherwise fall under French law by the habitual-residence default of Article 21 — can therefore elect the law of England and Wales (or of Scotland or Northern Ireland, as their nationality connects them) to govern their French succession, and a French notaire will give effect to that choice. Brexit changed the UK's status but did not remove the British national's ability to make the election that France recognises.

Two cautions belong alongside that reassurance, and both flow from what earlier sections have already established. First, the election is a choice of succession law only; it does not touch French inheritance tax, which continues to apply to French-situated assets regardless of which law governs who inherits, nor does it resolve the separate cross-border tax questions that a UK–France estate raises. Second, and more importantly, the 2021 compensatory levy can still apply to a UK national's estate. If the deceased or a child is habitually resident in an EU member state — France itself counts — the EU connection is present even though UK nationality is not an EU nationality, so a child can claim their French reserve back out of the French assets despite an election of English law. For a British family living in France, that residence-based trigger is easy to overlook and frequently decisive.

How to make the election in your will

An election under Brussels IV is only as good as the way it is expressed, and the safest place to express it is in a will. The Regulation requires the choice to be made expressly in a declaration in the form of a disposition of property upon death, or to be demonstrated by the terms of such a disposition — in practice, a clause in your will stating that you choose the law of your nationality to govern the whole of your succession. A choice that is merely implied, or that a notaire has to infer, invites dispute; a clear, express clause does not.

The steps below set out how the election is made and made to stick. None of them is complicated on its own, but leaving any one of them out is how an election fails.

Done properly, the election is a short clause resting on a careful analysis. The clause is easy; the analysis — which nationality, whether the default already applies French law, and above all whether the 2021 levy defeats the plan — is where the value lies, and it is why the election belongs in a will drafted with cross-border succession in mind rather than in a home-made document.

Frequently asked questions about Brussels IV and a French estate

Can I choose English or US law for my French estate?

Yes, if you hold that nationality. The EU Succession Regulation lets "a person choose the law of the State whose nationality he possesses" to govern the whole of their succession (Article 22, Regulation 650/2012), and France applies that choice to the French estate. So an English or American national can elect the law of England and Wales, or of their US state of nationality, in place of the French law that would otherwise apply by default under the habitual-residence rule (Article 21). The choice must be made in your lifetime, expressly, in a will.

Does Brussels IV avoid French forced heirship?

It can, but not always. Electing a national law that has no reserve displaces French forced heirship — the reserved portion for children under Article 913 of the Civil Code — for the whole estate. However, for estates opened since 1 November 2021, a compensatory levy lets an EU-connected child claw back their reserved share out of the French-situated assets (Article 913 of the Civil Code, as amended by loi 2021-1109). So where the deceased or a child is an EU national or EU-resident, the election may not keep a French property away from the children.

Does it apply after Brexit?

Yes, for the purpose that matters. The UK never opted in and is now a third country, but France applies the Regulation to French estates, and Article 22 does not require the nationality you choose to be an EU one. A British national habitually resident in France can still elect the law of England and Wales to govern their French succession, and a French notaire will give effect to it. The 2021 levy, though, can still apply through the EU-residence limb — a UK national living in France meets it.

What is the 2021 levy?

It is the compensatory levy (prélèvement compensatoire) reintroduced by French law for estates opened since 1 November 2021. Where the deceased or at least one child is an EU national or habitually resident in the EU, and the foreign law governing the succession has no mechanism reserving a share for the children, each child may levy on the French-situated assets up to the value of the reserve French law would have given them (loi 2021-1109 of 24 August 2021, Article 24; Article 913 of the Civil Code, as amended). It is designed to restore forced heirship on French assets despite a foreign-law election.

How do I make the choice-of-law election?

You make it expressly in your will, stating that you choose the law of your nationality to govern the whole of your succession (Article 22 of the Regulation). It must be made in your lifetime — an heir cannot make it after your death — and it should be drafted so that a French notaire can act on it and, where needed, issue a European Certificate of Succession (Articles 62 and 63 of the Regulation). Before relying on it, the plan should be tested against the 2021 compensatory levy.

Does choosing my national law change French inheritance tax?

No. Brussels IV is about succession law — who inherits and in what shares — not about tax. Choosing English or US law to govern your French estate does not alter French inheritance tax, which continues to apply to French-situated assets on its own rules. Succession law and succession tax are separate questions, and the election answers only the first.

What happens if I make no choice at all?

The default applies: "the law of the State in which the deceased had his habitual residence at the time of death shall apply to the whole of the succession" (Article 21 of the Regulation). For a foreign national who has made France their home, that default is French succession law, forced heirship included. If you want a different law to govern your French estate, you have to elect it in your lifetime; there is no way to make the choice for you after death.

How our French lawyers help with Brussels IV and your French estate

A choice-of-law clause is one sentence, but whether it does what you want turns on an analysis most foreign owners are not equipped to run themselves: which nationality you can elect, whether the habitual-residence default already applies French law, and — the decisive question — whether the 2021 compensatory levy will restore your children's reserve on the French assets despite the election. We advise British, American and other foreign owners of French property on whether a Brussels IV election achieves their aim, draft the will and the choice-of-law clause so a French notaire will give effect to it, and make sure the French estate is set up to be settled cleanly, with a European Certificate of Succession where one is needed.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. How the EU Succession Regulation and French law apply depends on your nationality, your habitual residence, your family and your assets. Contact our French lawyers for advice on your situation before acting.