ARTICLE
29 May 2024

Monaco's Solution For Reconciling Testamentary Freedom And Forced Heirship

CP
CMS Pasquier Ciulla Marquet Pastor & Svara

Contributor

CMS Monaco is a leading law firm, providing local and international clients with a one-stop shop service for all their legal challenges, both in counselling and litigation. The firm was created in 2009 and is strongly anchored in the Monegasque market and well familiar with its dynamic economy. In 2017 the firm joined CMS, an organisation of independent law firms, composed of 80+ offices in 45+ countries, with over 6,000 lawyers worldwide, making it the only law firm in Monaco with such significant international reach. Today CMS Monaco is composed of 80+ professionals, including five partners (Avocats Associés Monégasques) and over 50 associates, experts in Monegasque law. The firm is structured around seven practice groups: Private Clients, Business Law, Real Estate & Construction, Employment, Banking & Finance, Tax and Criminal law. The teams regularly work together on complex cross-practice cases with high stakes for a large variety of Monegasque and international clients, such as companies of various sect
The question of forced heirship is the subject of debate in many European countries, where opinions differ on how to reconcile the freedom to dispose of one's property with the protection of the interests of the heirs.
Monaco Family and Matrimonial

The question of forced heirship is the subject of debate in many European countries, where opinions differ on how to reconcile the freedom to dispose of one's property with the protection of the interests of the heirs.

Monegasque law provides forced heirship rights to descendants, which varies according to the number of children, but grants no forced heirship rights to the surviving spouse.

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Monegasque private international law deals with the question of forced heirship in a singular way, by making it subject to the national law of the deceased. However, this provision relies on a kind of legislative schizophrenia in article 63 of the Code of Private International Law, which creates legal uncertainty and makes the settlement of successions disproportionately complex.

In comparison, French law grants forced heirship rights to descendants, which varies according to the number of children, and the surviving spouse only has the status of forced heir in the absence of children.

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France decided to strengthen the forced heirship of descendants in its legal system, by adopting the law of 24 August 2021 to reinforce respect for the principles of the Republic. This law introduced a new right to compensation (in French, "droit de prélèvement compensatoire"), with the legislator's stated aim of establishing forced heirship as a rule of international public policy. However, this law raises a number of practical difficulties, in particular because of its contradiction with the provisions of the European Regulation on successions n°650/2012.

On the other hand, some neighbouring countries, such as Belgium and Switzerland, have recently chosen to lower the proportion of forced heirship in their law in order to increase testamentary freedom. Belgium introduced a fixed freely disposable portion of ½ regardless of the number of children, while Switzerland limited forced heirship to ½ of the legal rights, regardless of the number of children. These reforms have led to greater testamentary freedom while maintaining a certain degree of protection for heirs.

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At European level, the European Court of Human Rights has just stated, in its recent Jarre v. France judgment of 15 February 2024, that forced heirship is not a human right, in line with the Marckx v. Belgium judgment of 13 June 1979, which held that "the right to dispose of one's property constitutes a traditional and fundamental aspect of the right of property".

This ECHR case law will certainly influence the assessment of international public policy rules in the context of the European Regulation on successions.

In conclusion, the question of forced heirship is dealt with differently from one country to another. Some of them strengthen it, while others make it more flexible in order to increase the freedom of choice, in line with the liberal trend in private international law. The legal uncertainty arising from the Monegasque solution, which relies on the national law of the deceased, calls for a legislative reform that would give the legislator the opportunity to consider the place assigned to forced heirship in the Monegasque legal system.

In any case, if you live in the Principality or own a property here, you should secure your future and that of your heirs by entrusting your estate planning to a legal professional who will provide you with tailored advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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