Forced Heirship and International Estate Planning: A Guide for UK Families

England and Wales operates on the principle of testamentary freedom. Subject to claims under the Inheritance (Provision for Family and Dependants) Act 1975, an English testator may leave their estate to whoever they choose — a charity, a friend, a distant relative, or any combination. This freedom is so fundamental to English legal culture that it can come as a significant shock to discover that it does not apply to assets held in many continental European countries.

For UK nationals who own property in France, Spain, Germany, or other civil law jurisdictions — or whose families include members resident in those countries — forced heirship rules are one of the most important issues in cross-border estate planning. Getting it wrong can mean that cherished plans, carefully documented in English wills and trusts, are overridden by the local law of the country where assets are held.

What is Forced Heirship?

Forced heirship (known in French as réserve héréditaire and in Spanish as legítima) is a legal rule that reserves a mandatory share of a deceased's estate for certain close relatives — typically children, and in some systems spouses or parents. The reserved share cannot be overridden by will. Whatever the testator's wishes, the forced heirs are entitled to receive their reserved portion.

The reserved share varies by jurisdiction and by the number of qualifying heirs:

• France: one-half of the estate to one child; two-thirds to two children; three-quarters to three or more children
• Spain: two-thirds of the estate is subject to forced heirship provisions (one-third to equal shares between children; one-third that can be allocated to any child or between children unequally — only the final third is freely disposable)
• Germany: surviving children, spouse, and parents are entitled to a Pflichtteil (compulsory portion) of half the intestate share they would have received
• Italy: similar to France, with reserved shares for children, spouse, and in some cases parents

The consequence is significant. A UK national with a French holiday property who intends to leave their estate to their partner (rather than their children from a previous relationship) may find that French law requires their children to receive half or more of the value of the French property.

The UK's Approach: Testamentary Freedom

English law takes the opposite view. Subject to the 1975 Act claims mentioned above, English courts will give effect to a testator's wishes as expressed in a valid will. The 1975 Act allows certain categories of dependant — a surviving spouse, former spouse, cohabiting partner, child, or other person maintained by the deceased — to apply to the court for reasonable financial provision from the estate, but this is a claim for maintenance rather than a forced share, and it applies only to the English estate.

The conflict between English testamentary freedom and continental forced heirship rules has created a rich body of case law and legislation, most significantly the EU Succession Regulation.

Brussels IV: The EU Succession Regulation

EU Succession Regulation 650/2012 (commonly called Brussels IV) came into force on 17 August 2015 and applies to the estates of persons who die domiciled in an EU member state. Its central rule is that the law applicable to the succession of an estate as a whole is the law of the habitual residence of the deceased at the time of death.

This was a significant change from the previous position in many EU states, which applied the law of nationality or domicile. Under Brussels IV, a British national habitually resident in France at death would have their estate governed by French law — including the French forced heirship provisions.

However, Brussels IV contains a crucial election: a person can choose in their will that the law of their nationality applies to their succession. This is the Brussels IV election. For a UK national, this means that by including an appropriate clause in their will, they can elect for English law to govern their succession — even for assets located in France, Spain, or other EU member states.

The election needs to be made clearly in the will and should be reviewed by a lawyer familiar with both English law and the relevant EU jurisdiction.

The UK and Brussels IV Post-Brexit

The UK was bound by Brussels IV before it left the EU but did not opt in to it — accordingly, UK courts are not bound to apply Brussels IV. After Brexit, the position is:

• EU courts still apply Brussels IV, including elections by UK nationals — so a valid Brussels IV election in an English will should be recognised by French or Spanish courts
• UK courts apply their own conflict of laws rules, not Brussels IV directly — though they may reach similar outcomes in practice

In practice, a UK national with French property should still make an explicit Brussels IV election in their will. They should also obtain French legal advice on whether French courts will give effect to it in their particular circumstances. The interaction between the French réserve héréditaire and Brussels IV elections has been the subject of significant development: in two 2017 decisions the Cour de cassation (France's highest civil court) held that a foreign law which ignores the réserve is not, of itself, contrary to French international public policy. However, a French law in force since November 2021 (article 913 of the Civil Code) introduced a droit de prélèvement compensatoire — where the deceased or a child is an EU national or EU resident and the chosen foreign law gives children no reserved share, each child may claim compensation out of the French assets up to what they would have received under French forced heirship. This provision is widely regarded as being in tension with Brussels IV and is the subject of a European Commission infringement enquiry, so its application to a UK national electing English law remains uncertain.

Situs Rules: Where Are Assets Located?

Before considering which succession law applies to each asset, it is necessary to understand where that asset is legally "located" — its situs. The situs rules matter because most international succession frameworks apply the law of the situs to certain categories of asset (particularly immovable property) irrespective of any other choice of law.

Common situs rules applied by UK courts:

• Land and buildings: sited where they are physically located — French property has its situs in France; Spanish property in Spain
• Shares in companies: generally sited where they are registered (for a UK-registered company, in England; for a BVI company, in the BVI)
• Bank accounts: generally sited at the branch where the account is held
• Debts: generally sited where they are recoverable (usually the debtor's residence)
• Moveable chattels (cars, art, jewellery): sited where they are physically present at death

For land in particular, English courts will generally apply the lex situs — the law of the place where the land is located — on matters of succession, irrespective of a Brussels IV election or any other choice of law. In practice, this means that while Brussels IV may bring French succession law to bear on a UK-registered share portfolio held by a UK national in France, the French property itself is likely to be subject to French law in any event.

Practical Implications for UK Families

The most common scenario is a UK national who owns a holiday home in France or Spain. Without planning:

• French law (as the law of the situs) will apply to the French property on death
• The forced heirship provisions will require a share — potentially a substantial one — to pass to the testator's children
• A surviving partner who is not a child and who is not married to the deceased may receive nothing from the French property

With planning:

• A Brussels IV election in the English will can direct the overall succession by English law, potentially excluding the forced heirship claims — subject to French court recognition
• Marriage or civil partnership significantly reduces the exposure (surviving spouses have different treatment under French and Spanish law)
• A French SCI (Société Civile Immobilière) — a French property-holding company — can change the situs of the asset from French land to French company shares, which may be treated differently
• English trust structures can hold French property shares, though the interaction between English trust law and French succession law is complex
• Life insurance written in trust can provide assets outside the succession to compensate beneficiaries who might otherwise be disadvantaged

Each of these requires specialist advice from lawyers qualified in both English and the relevant civil law jurisdictions.

Multi-Jurisdiction Families: When Members Are in Different Countries

The problem becomes more complex when the family itself is international — some members UK resident, some in EU countries, some elsewhere. In these cases:

• The Brussels IV election applies to the habitual residence and nationality of the deceased at death — if a UK national has been living in Spain for 20 years, their habitual residence may be Spain, and a Brussels IV election is essential
• Each EU jurisdiction may claim to apply its succession law to assets located there
• Non-EU jurisdictions (including the UK post-Brexit) apply their own conflict of laws rules independently of Brussels IV

The practical implication is that multi-jurisdiction families almost always need separate wills for each jurisdiction where significant assets are held, coordinated by advisers familiar with both systems. A single English will, however carefully drafted, is rarely sufficient.

Simplification Strategies

Where the cross-jurisdictional complexity is unmanageable, there are two simplification strategies worth considering:

Reduce the number of jurisdictions: The fewer jurisdictions in which a family holds assets, the simpler the succession position. Where assets in a particular jurisdiction represent a small proportion of the overall estate and can practically be liquidated, disposing of them and consolidating elsewhere simplifies the planning enormously.

Use company or trust structures: Holding overseas property through an appropriately structured company can change the situs of the asset and may reduce or eliminate forced heirship exposure. This requires specialist advice in the relevant jurisdiction and should not be undertaken without it.

Keeping Documents and Advisers Updated

One of the most common planning failures is a will or trust structure that was appropriate when created but has become outdated as the family's circumstances changed — new properties acquired, family members moving to different countries, changes in the law.

Families with assets in multiple jurisdictions should:

• Review their wills whenever a new overseas asset is acquired
• Review their wills when any family member changes country of residence
• Monitor changes in the succession laws of countries where they hold assets — the French forced heirship rules have been the subject of significant litigation and legislative change in recent years
• Maintain an up-to-date asset register that their executors and advisers can access

How Global Investments Can Help

Global Investments works with internationally mobile clients who hold assets across multiple jurisdictions. We understand the interaction between English law, Brussels IV, and the succession regimes of the countries — including France, Spain, Greece, Cyprus, the UAE, and Thailand — where our clients hold property and other assets.

We can coordinate with specialist estate planning solicitors and local lawyers in each relevant jurisdiction to ensure that your estate planning documents work together, that Brussels IV elections are properly made where appropriate, and that the succession of your overseas assets will give effect to your wishes as far as the law permits.

We are honest about the limits of planning: in some jurisdictions and some circumstances, forced heirship provisions cannot be fully excluded. We help you understand the realistic options and make informed decisions about how to structure your affairs.

This guide is for general information only and does not constitute legal advice. Succession law is jurisdiction-specific, changes frequently, and depends on individual circumstances. You should obtain specialist legal advice in each jurisdiction where you hold significant assets.