notary Marriage contracts and estate planning in the Normandy region

The gift between spouses, also called "gift to the last survivor" is very often used by couples wishing to increase their protection in the event of death. But this institution is little known abroad. It is unknown under some law systems, while others prohibit it. Moreover, in an international context, a gift between spouses can raise difficulties. To avoid such difficulties, it often appears wiser for a couple owning assets abroad or living abroad or when at least one of the partners is of foreign nationality, to make wills. Spouses may establish themselves by will reciprocally as sole legatees. Thus the objective sought by the gift between spouses, namely to increase the protection of the surviving spouse, will be achieved. 

When French law is applicable to a succession, the French Civil code foresees that a determined part of the deceased's heritage must compulsorily be assigned to the children, namely half in presence of one child, two third in presence of two children, and three quarter in presence of three or more children. 

We refer to an international estate when the inheritance has an international aspect. So there will be an international estate if the deceased held an asset in at least one country other than that of his nationality or residence, or if the deceased dies in a country other than that of his nationality or residence. 

In an international context, husband and wife have the option of changing at any time the law applicable to their matrimonial regime. However, this choice is circumscribed by and limited to the following laws: -          that of the State of which one of them is a national, -          that of the State in which one of them is habitually resident at the time of the choice, -          that of the State where the immovable assets are located, but only in regard to these assets. This change of applicable law must result from an instrument executed in the form of a marriage contract. It may need to liquidate the previous regime. Steps to publicise such a change are necessary for opposability against third parties

If the notary accompanies his clients in the good times (e.g: marriage, purchase), he is also there to assist them in painful times such as is the death of a close relative and the regulation of a succession. The international department of the ETASSE et Associés law office, is directed by Maître Alexandra ETASSE, specialist in International Private Law. She accompanies her clients in the framework of regulation of succession in international dimension by taking into consideration both the legal and civil, as well as fiscal dimensions. In a general manner, the regulation of a succession takes place in five stages: 1 / The opening of the succession. The heirs should choose a notary to help them in the regulation of the succession. In a general manner it is advised that they all agree on this choice so that a single notary is in charge of the regulation of this succession. The notary and the heirs should search for the existence of a possible will left by the deceased, either in his personal business, in a notary's office in France or abroad or among any other jurists abroad. The wills which are at a notary in France are in principle recorded in a central file, denoted the Central File of Provisions of Last Will and Testaments. This file will be queried by the notary in charge of the regulation of the succession. It is important to note that in France, contrary to what happens in other foreign legal systems, the heirs are personally responsible for the regulation of the succession and the payment of the succession dues. 2 / The establishment of the act of notoriety. The notary in charge of the regulation of notoriety, shall draw up an act of succession, in which will be listed all the heirs, legatees and the rights of each as well as their shares in the succession. 3 / The determination of the act of succession. This stage aims to determine both the act and the liability of the succession by taking into consideration the matrimonial regime of the deceased. The prior donations will also be considered both for civil and fiscal reasons. The existence of a life insurance contract must sometimes be taken in account in the determination of the succession assets.  4 / The option. Once the succession assets are determined, the heirs must opt between various choices (e.g: to accept the succession). The surviving spouse with regard to the particular options (e.g.: the usufruct of the whole). 5 / The establishment of the succession declaration and the regulation of taxes.  The taxation of the succession assets shall be a function of the nature of the assets and the relationship between the heirs and the deceased as well as of the existence of possible international conventions. In addition, the notary will be charged to draw up the other acts possibly necessary to finalise the regulation of the succession (e.g: certification of ownership for the real estate assets, certificate of ownership for the parts of a company, closure of the inventory…) In a general manner when the succession includes some international elements, the international department of the ETASSE et Associés law office, will analyse the situation. Often, it is also necessary to resort to services of a jurist in the country concerned

The tontine clause that must be inserted in the acquisition act, is often considered in the scope of the protection of the surviving spouse or the partner. This clause foresees that the owner of the goods shall be the survivor of the signatories of the tontine pact. Often it aims to avoid the application of the hereditary reserve to the death of the first of the spouses or partners. But pay attention to the tax system for those that are not married nor in civil unions.