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FAQ 
INTERNATIONAL

Marriage

Can a minor get married?

Yes, but with the consent of his parents.

Can I marry my cousin?

Yes, but there are impediments provided by the Civil Code: they only concern ascendants and descendants and relatives or allies of the direct line, brothers and sisters with each other, uncles and aunts with nieces and nephews.

What happens if we don’t sign a prenuptial agreement?

A prenuptial agreement enables the spouses to choose a matrimonial system adapted to their current situation and to their life plan, which will remain the same, even if the spouses move abroad.

Who should I contact to choose a matrimonial system and to draft a prenuptial agreement?

You need to see a notary. He will recommend the best solutions in keeping with your life plan. As a public officer, he is the only person empowered to draw up a prenuptial agreement, which corresponds to the spouses’ wishes in accordance with the legal provisions.

When is it time to sign a prenuptial agreement?

The agreement must necessarily be signed before the celebration at the town hall, because the notary issues a certificate, which has to be given to the registry office prior to the marriage.

How much does it cost to get a prenuptial agreement drafted?

The cost depends on the complexity of the spouses’ situation and on the importance of their estate. The price is approximately € 500, unless there is a special case to be dealt with.

Can we change our matrimonial system once we are married?

Yes, if this change is in the interest of the family and if you have been married at least two years. You have to go see a notary who will draft a new contract. This change will be final only if no adult child and if no creditor raises an objection to this change within 3 months. However, in the presence of children under 18 or if, after notification, an adult child or a creditor opposes the proposed change, the court needs to approve this change. Except for certain cases, the new contract contains liquidation of the previous matrimonial system. The cost of the change of a matrimonial system is greater than a prenuptial agreement.

I am getting married abroad, I am going to marry a foreigner, I am moving abroad: does this change anything for me?

Couples who get married in France or abroad must comply with the conditions required by their national law.

The foreign spouse who wants to get married in France must provide a certificate proving that he/she has the right to marry, for example, because he/she is old enough.

If the marriage is celebrated abroad, the spouses should ask the French Consulate or French Embassy in order to get all the necessary paperwork done before and after the wedding. The omission of certain formalities may lead to the annulment of the marriage, or to its lack of perfection in France.

Regarding the matrimonial system :

If you have not signed a prenuptial agreement and if you or your spouse is a foreigner, the matrimonial system will be determined by application of the Hague Convention, which came into force in France as of the 1st of September 1992.

Even if both spouses are French, if they live abroad for a long period during their marriage, their matrimonial system can automatically change.

Therefore, to avoid any questions and debates over your marital system and the risk of an automatic change of the system due to a change of residence, it is advisable to regularize a prenuptial agreement before marriage.

Civil union

Can a minor enter into a civil partnership?

No, a minor cannot sign a contract of civil partnership.

Can I enter into a civil partnership with my cousin?

Yes, but there impediments provided by the Civil Code: they only concern ascendants and descendants and relatives or allies of the direct line and collaterals to the third degree inclusive.

Note that a person who is already married or in a civil partnership cannot sign a contract of civil partnership.

How much is the drafting of a contract of civil partnership by deed?

 The cost depends on the complexity of the situation of the future partners and on the extent of their estate. The price is approximately € 500, except in special cases.

Are my civil partnership and its effects acknowledged abroad?

 Not all countries recognize the validity of civil partnership and the status of the partner.

Divorce

Are donations between spouses revocable?

There are two types of donations between spouses. Some have an immediate effect: these are donations of present assets, such a sum of money or of real estate made ​​by one spouse to the other. The other kind of donation does not produce any effects before death (just like wills): it these are donations of future assets that are said to be « because of death, » or “donation to the last survivor ».

Donations of present assets and other marital benefits that come into effect during marriage are revocable if they were made before the 1st of January 2005. They are binding if they have been consented since that date. In all cases, they are maintained in case of divorce.

Donations of future assets are revocable like wills. Matrimonial benefits that do not come into effect during marriage, such as the provision of full allotment, are removed automatically in case of divorce. Since the 1st of January 2007, the spouses may, if the prenuptial agreement provides so, take back the assets they had brought to the community. Seeking advice form a notary at the beginning of the procedure will enable you to draft an appropriate will.

Are maintenance allowances taxable?

Yes, they are subject to income tax. Conversely, they are deductible from the income of the person who pays them, except in the case of special tax the first year. Likewise, compensatory allowances are deductible under certain conditions and have to respect a ceiling.

Is it possible to review the amount of the maintenance allowance?

The pension is indexed to the INSEE index of the cost of life and is established according to the resources of the person who pays it and to the child’s needs. If significant changes occur at this level, you can go to Family Court to request a review.

When can I remarry?

 You can remarry when the divorce is final, i.e. after the expiry of the appeal period.

The use of the name

In the event of divorce, each spouse loses the use of the other spouse’s name.

But, one spouse can keep the use of the name of the other, either with the latter’s consent or with the court’s authorization, if the spouse justifies his particular interest for him/her or for the children.

What happens to the compensatory allowance if the debtor dies?

The compensatory allowance due to the former spouse is due immediately after the divorce. It is deducted from the estate and the heirs are not personally liable for this allowance.

If it is an annuity, it will be converted to a lump-sum by applying a scale fixed by decree.

However, the amount of the reversion pension is automatically deducted from the annuity.

 How should I report income in the year of divorce?

One common declaration has to be made.

 Which judge should one refer to in case of divorce in an international context?

If one of the spouses is a foreigner, or if French spouses live abroad, it is difficult to know which law will be applicable and before which court the spouses should bring their action. However, the patrimonial and personal consequences of divorce, decided by the judge may vary considerably from one country to another.

Within the European Union, the European Act called Brussels II bis applies when the spouses or one of them have their habitual place of residence on the territory of a State which is a member of the European Union. In this case, the Act provides that the court will have jurisdiction according to two criteria:

. Residence: it is the place of residence where  the spouses live most often or the last place of  residence where the spouses live most often provided that one of them still lives there, or it can also be the habitual residence of the applicant if he/she lived in the country for at least one year.

Nationality: the court of the State of the spouses’ common nationality can have jurisdiction.

Outside of the European Union, in accordance with French law, jurisdiction is determined thanks to three criteria: the family residence, if none, the residence of the spouse who has custody of the children, and if none, the residence of the spouse who has not initiated the divorce (the defendant). However, in some countries, even if the criteria mentioned above are not fulfilled, the judge will be able to say they have jurisdiction because they have been referred to before the other court(s).

Note that a new European Act called Rome III applies to the states that are members of the EU and allows the spouses, if they agree, to choose the law applicable to their divorce in the form of a written agreement.

It is therefore highly recommended to consult you notary before being confronted with the question of the court’s jurisdiction and its impact on the divorce.

What are the effects of a foreign divorce decree in France ?

In principle, a divorce decree pronounced abroad produces effects in France, without exequatur (French judgment making the divorce verdict granted abroad enforceable), provided that the judge’s decision is lawful.

For State members of the European Union, the Brussels II bis Act demands that foreign divorce verdicts of a member State be recognized in other member States where they are invoked.

If a foreign decree provides a sharing of the assets of the couple, including the allocation to one of them of real estate located in France, a French notary should be contacted and be given an official copy (authentic or certified copy) of the foreign divorce decree, so that the notary may draft a real estate certificate mentioning the divorce decree.

Transferring assets

What are the formalities to carry out in case of death?

The death certificate signed by a doctor must either be handed over to the town hall within 24 hours or transmitted by the hospital administration. The burial certificate is issued by the mayor of the city of the person’s death. Incidentally, you should also inform the social organizations and the different banks in which the deceased had accounts about the death.

What happens to the deceased’s bank accounts?

All personal accounts are frozen until the bank receives instructions from the notary in charge of the estate and from all the heirs, as well as a document proving the quality of the latter. The joint accounts continue to operate under the sole signature of the survivor. In principle, half of the account balance at the time of death is supposed to belong to the deceased and is integrated into the estate.

What happens if the deceased has no living heir?

If the deceased has no will in favour of a third party, and after a genealogist has checked that there are no living heirs to inherit of the estate, all of the assets go to the State.

Can I transfer all of my estate to my spouse?

Descendants are entitled to a minimum share called “rightful portion”. Therefore the spouse can only receive all of the assets by way of donation or will, if the deceased has no descendants. However, it is possible to give or bequeath to the surviving spouse the entire estate in usufruct.

In some cases, if the deceased’s children are common to both spouses, the matrimonial system of community with a full attribution clause in favour of the surviving spouse enables the deceased to transfer all of the estate to the survivor.

How is the deceased’s estate evaluated fiscally?

The estate is valued at net market value: the value of the assets is reduced by the amount of the deceased’s debts at the date of death.

Is it possible to disinherit a child?

No. A child is a rightful heir who must receive a minimum share of the deceased’s estate. However, it is possible to reduce this share by giving all or part of the freely disposable portion to this child’s own children, his/her brothers and sisters, his/her spouse or to third parties.

Is it possible to disinherit a mother and/or a father?

Yes: since January 2007, parents are no longer rightful heirs.

How can I be sure that my will will not get lost or destroyed?

The risk of loss or destruction of wills is an important matter. It is safer to go to a notary, who will ensure the conservation, make sure of the legal validity in substance and in form, and will guarantee that your last wishes are carried out.

How do I know if the deceased entrusted a notary with a will?

Notaries have created a central database where donations between spouses and wills deposited at their office are confidentially referenced. They consult this file when they are in charge of someone’s inheritance. This file is now common to France and Belgium and is supposed to be extended to Europe. This is the best way to ensure that the will will be executed.

How can I ensure my spouse’s future?

In the absence of a « donation to the last surviving spouse » and in the absence of a will, the situation of the surviving spouse may be particularly vulnerable if there are children of a previous union involved and if the spouse forgets to claim the lifetime right to the family house recognized by the law.

In this case, the survivor will lose his/her lifetime right to the family house. His/her legal rights in the estate will be the full ownership of one quarter of the estate. Therefore, it is appropriate for spouses to follow through with the organisation of their own protection with the assistance of their notary.

Several solutions are possible, including the following ones:

  • Each spouse can consent to the other a « donation to the last survivor « . When one of the spouses dies, the children collect their minimum shares, while the rest (the freely disposable portion between spouses) goes to the surviving spouse.
  • It is possible to adjust the prenuptial agreement in order to transfer certain assets to the spouse (e.g. the family house and its furniture or financial assets…).
  • It is also possible to adopt the joint estate system: all of the couple’s assets then belong to both spouses. When one dies, and if the prenuptial agreement provided a clause of full attribution of the community to the survivor, the latter, in principle, becomes sole owner of the whole and has no tax to pay.

What rights does my cohabitant have?

Legally, the cohabitant is considered as a third party, as a stranger to the family. He has no right to inherit: the entire estate goes to the children (if any), or if none, to other relatives (parents, brothers and sisters, etc…).

Of course, you can always carry out a donation or bequeath a portion of your estate to your cohabitant, provided that you comply with the rightful heirs’ rights (descendants). But the fees are very important: 60% of the value of the assets transferred. The donation can reduce the rate depending on the donator’s age.

Other solutions also help reduce the amount of tax: life insurance, the tontine, payment of the donation fees by the donator. These solutions can be implemented with the help of notary.

What are the rights of my partner who is bound to me by a contract of civil partnership?

This legal situation is special.

Civil law treats partners as cohabitants: they are strangers to the family who have no legal estate vocation. They will inherit only if a will was drawn up in his/her favour and if there is no contradiction with the rightful heirs’ shares (see above).

Since the law of the 21st of August 2007 (“TEPA Act”), tax law assimilates surviving partners to surviving spouses. In case of donation, they also benefit from a € 80,724 allowance before the rate between spouses applies. In case of inheritance, partners are completely exempted from taxes.

What do “usufruct” and “bare ownership” mean?

The attributes of ownership can be divided into two distinct rights:

  • The right of usufruct which corresponds to the right to use the asset and to receive incomes related to the asset. This right can be either a temporary right or a life annuity right.
  • Bare ownership leads to the full property when the usufruct ends.

There is no joint ownership between an usufructuary and a bare owner.

What happens if I put all of my money on a life insurance account?

Funds invested in a life insurance contract are not treated as part of the assets of the inheritance. Therefore, one could be tempted to put all their money on a life insurance account in order to avoid the children’s rightful heirship. But, if the premiums are considered to be « manifestly excessive », they will be reinstated in the deceased’s estate to serve the children’s reserved shares. The judge will compare the assets and the incomes of the insured party to the premiums paid.

How is the money from my life insurance taxed?

1 - For contracts subscribed before the 20th of November 1991: no matter the age of the insured party

  • Inheritance tax exemption
  • For premiums paid after the 13th of October 1998: application of a 152,500 euro allowance per beneficiary before application of a 20% levy on the capital paid and of 25 % for the part of the part capital exceeding € 902,838.

2 - For contracts subscribed between the 20th of November 1991 and the 13th of October 1998

  • Concerning the premiums paid before the insured’s 70th birthday: Inheritance tax exemption
  • Concerning the premiums paid after the 13th of October 1998: application of a 152,500 euro allowance per beneficiary before application of a 20% levy on the capital paid and of 25 % for the part of the part capital exceeding € 902,838.
  • Concerning the premiums paid after the insured’s 70th birthday: After a global allowance of € 30,500 for all beneficiaries allocated in proportion to their rights, the inheritance tax scale is applied.


3 - For contract signed as of the 13th of October 1998

  • Concerning the premiums paid before the insured’s 70th birthday: Inheritance tax exemption. Application of a 152,500 euro allowance per beneficiary before application of a 20% levy on the capital paid and of 25 % for the part of the part capital exceeding € 902,838.
  • Concerning the premiums paid after the insured 70th birthday: After a global allowance of € 30,500 for all beneficiaries allocated in proportion to their rights, the inheritance tax scale is applied.

What are the effects of donations between spouses abroad ?

Donation between spouses enables one or both spouses to protect the other in case of death.

However, this institution is little known abroad, and it is sometimes even prohibited in some countries.

In an international context, either because of the foreign nationality of on of the spouses or because certain assets are owned abroad, its application is uncertain.

It is therefore not  recommended to multiply acts and not to scatter them in different countries. Rather than regulating such an act which may give rise to difficulties of application or not be applicable, it is safer to make testamentary dispositions. These provisions will achieve the same purpose as that sought by way of donation between spouses. Given the importance of these provisions, consult your notary before drafting them.

What are the consequences of an international context on inheritance ?

In an international context, the inheritance law that is applicable may not be French law, either because of the deceased’s last place of residence, or because of the location of the real estate. Several laws may be applicable to the same estate.

The consequences are important because certain inheritance laws impose the transfer of assets to heirs, and other inheritance laws, as in France, require the transfer of a share of the estate (a rightful share) to children or to the spouse if no children, whereas other systems provide complete freedom for the transfer of the estate.

Furthermore, taxation of the transfer of the estate is necessary but may in some cases be solved by a tax treaty signed by the foreign country and by France, which will avoid double taxation.

Within the European Union, it will soon be possible to choose, by way of will, the European inheritance law applicable to the deceased’s entire estate, regardless of the location of the real estate and regardless of the deceased’s place of residence. This will enable a uniformed treatment of the estate, no matter where the real estate is located.

Because law is specific to a country, both from a civil and a fiscal point of view, it is recommended to seek advice from a notary before you decide to expatriate or if you own assets abroad. Your notary will guide you in order to draft a will in accordance with tax law and the legal inheritance rules.

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