The French Claw-Back Is Taken in an Office, Not a Court

A child who takes nothing under a foreign will can be told, by the notary settling the French part of the estate, that French law offers them a levy on the French assets. There is no claim form, no judge, and nobody has to sue anybody.

That is the part of the French position that internationally structured families meet late, and it is not the reserve itself. The reserve is famous. The delivery mechanism is not, and the delivery mechanism is what makes the exposure certain rather than theoretical.

The provision

The third paragraph of article 913 of the Code civil provides that where the deceased or at least one of their children is, at the time of death, a national of a member state of the European Union or habitually resident there, and where the foreign law applicable to the succession permits no protective reserved-heir mechanism for children, each child or their heirs or assigns may take a compensatory levy on the existing assets situated in France on the day of death, so as to be restored to the reserved rights French law grants them, within the limit of those rights.

It was inserted by article 24 of loi no. 2021-1109 of 24 August 2021, entered into force on 1 November 2021, and applies to successions opened from that date, including where the gifts in question were made before it. The first paragraph of the same article fixes what is being restored: gifts may not exceed one half of the disposer's assets where one child survives, one third where two do, and one quarter where three or more do.

The obligation that makes it operative

The same 2021 article added a paragraph to article 921. Where the notary observes, in the course of settling the succession, that a heir's reserved rights may be affected by the gifts made by the deceased, the notary informs each concerned and known heir, individually and, where applicable, before any partition, of the right to seek reduction of the gifts exceeding the disposable portion.

Read those two provisions together and the shape of the risk resolves. A right a family's advisers have not identified is a contingency. A right a public officer must disclose to its beneficiary, individually, at the moment the estate is being settled, is an event with a date. France did not merely create a claw-back in 2021. It arranged for the person entitled to exercise it to be told.

That is the argument here, and it is the one a reader may want to resist: the French exposure that matters to a cross-border family is procedural rather than substantive, and the instruments carrying it are worked in an office, on a filing deadline or on an urgent application rather than at trial.

The conflict, and what was settled in June

The provision sat awkwardly beside Regulation (EU) No 650/2012, applicable since 17 August 2015. Article 21(1) refers the succession as a whole to the law of the deceased's habitual residence at death; article 22(1) allows a person to choose instead the law of their nationality; article 35 permits refusal to apply the law so specified only where the application is manifestly incompatible with the public policy of the forum.

The European Commission received a large number of complaints, registered under reference CPLT (2022) 03325, alleging that article 913's third paragraph breached the Regulation and in particular the ability of a testator to choose the law of their nationality. It wrote to the French authorities in December 2023, opened the dialogue that precedes infringement proceedings, and in July 2025 told them that the explanations given did not match the wording of the provision, which therefore created legal uncertainty for citizens and practitioners. France replied on 13 October 2025. In a pre-closure notice of 1 June 2026 the Commission published those explanations with French consent, stated that the legal uncertainty had been resolved, and said it intended to close the file.

What France said is the operative material. The purpose of article 913's third paragraph is to allow article 35 of the Regulation to operate. The legislature deliberately avoided the term réserve héréditaire and wrote instead of a protective reserved-heir mechanism, in order to capture mechanisms unlike the French reserve, and it named the family provision of common-law systems as a functional equivalent. Where English law governs the succession, the French authorities said, the levy should not be applied, because English law contains such a mechanism.

What that construction actually asks of a notary

The test is no longer whether the foreign law has forced heirship. It is whether the foreign law permits any protective mechanism for children at all, and that is a comparative-law question about a system the person answering it does not practise.

It is worth noticing what the named equivalent actually says. The Inheritance (Provision for Family and Dependants) Act 1975 opens on a person who dies domiciled in England and Wales, and section 1(1)(c) admits a child of the deceased as an applicant where the estate does not make reasonable financial provision for them. The equivalence France relies on is therefore itself conditioned, and whether it is available in a given estate is a question for English and French counsel rather than one answered here.

A second instrument, and it does not wait for a death

Article 1649 AB of the Code general des impots obliges the administrator of a trust to file a declaration on its constitution, modification or extinction, and an annual declaration of the value of what it holds. The obligation is triggered where the settlor or a deemed settlor is resident in France for tax purposes, or at least one beneficiary is, or at least one asset placed in the trust is situated in France, or the administrator is domiciled there.

Failure is penalised under article 1736, IV bis, at 20,000 euros. That figure is what remains after the Conseil constitutionnel, in decision no. 2016-618 QPC of 16 March 2017, struck down the proportional element, set at five per cent and later twelve and a half per cent of the assets in the trust.

The point for a family is the trigger, not the figure. A single French-situs asset, or a single beneficiary who moves to France, brings a trustee inside a French filing obligation, and neither fact is one the trustee is reliably told about. The annual wealth tax on immovable assets under article 964 of the same code works on the same logic, at a threshold of 1,300,000 euros assessed on 1 January.

The right with no common-law counterpart

Article 9 of the Code civil provides that everyone has the right to respect for their private life, and that judges may, without prejudice to compensation for the harm suffered, prescribe any measures such as sequestration, seizure and others apt to prevent or bring to an end an infringement of the intimacy of private life. Where there is urgency, those measures may be ordered in summary proceedings.

That is differently shaped from anything available in England, where Parliament narrowed the reputational route deliberately, as set out in London Is a Procedure, Not a Place. It belongs here for the same reason the notary's duty does: it is fast, it is granted before the merits are tried, and it rewards a family that thought about it in advance.

Standing

This house holds no French qualification and no authority to advise on French law, act before a French notary or appear in a French court. Where a matter turns on any of those, French counsel and a notary are instructed separately, and coordinating that instruction is the whole of our contribution.

Structures are designed alongside independent counsel in each relevant territory. Nothing here is legal or tax advice, and a principal weighing any of it should take advice from an adviser unrelated to Privy Consul.

Coordination across incompatible succession systems sits under Succession, Continuity & Legacy Governance and Wealth Continuity & Legacy; the reputational half of a French matter, which moves faster, under Reputation Safeguarding & Digital Footprint Management.