This is one of the most frequent questions we hear in a notary or inheritance lawyer’s office: can a child be excluded from their inheritance? The answer is simple: no. And this no is engraved in the Civil Code. Every child is what the law calls a reserved heir: he is entitled to a minimum share of his parents’ assets, whatever happens. “The amount of this reserve is legally fixed”recalls Maître Vassant, lawyer at Avocats Picovschi.
For an only child, it represents half of the estate. For two children, a third each. For three or more children, they share the total reserve of three quarters of the estate (a quarter if three children, less if more). What remains after the hereditary reserve (a third of the estate if two children, a quarter if three or more…), we call this the available portion: the part of which we can freely dispose ofby will or donation, for the benefit of whom we wish. “We can favor one of our children or a third party on this basis”specifies Maître Vassant.
There is only one legal exception to the principle of hereditary reserve: inheritance indignity, reserved for extreme cases such as an assassination attempt on the deceased.
Life insurance, a circumvention tool… under conditions
Life insurance is often presented as the way out of the inheritance framework. Technically, this is correct: capital transferred via a life insurance contract is in principle treated outside inheritance. Before the age of 70, the amounts paid benefit from a tax exemption (exemption up to 152,500 euros after beneficiary). After 70 years, they enter the inheritance and rights apply. But freedom has its limits. When the sums placed in life insurance are judged “manifestly excessive” in relation to the total assets of the deceased, they can be reclassified as fraud and reintegrated into the estate.
“ It is case by case, only the judge can rule, it is a matter of case law »underlines Maître Vassant. Criteria will be examined, such as the person’s age, their financial, family and health situation, and above all the real usefulness of these payments. “Let’s take someone who sold their entire assets of 800,000 euros and placed it the day before his 70th birthday on his life insurance contractsfor the benefit of only one of his three children. There was only 50,000 euros left in cash. If the person is elderly, isolated, under the influence of a malicious child, reclassification is possible. »
Donation and will: beware of imputation rules
A donation can also be used to favor an heir, but again the rules are precise. If the donation is made “ excluding inheritance portion »it is imputed on the available quantity (the part which remains mentioned above). If this quota is exceeded, the injured reserved heir can take legal action to obtain reduction compensation and restore balance. “If the grandmother has an inheritance base of one million euros for two children, and she gave 800,000 euros to one, in reality, we have 133,333 euros which go beyond the available quota and encroach on the hereditary reserve of the other child”illustrates Master Vassant.
The same logic applies to legacies for the benefit of associations. “Many people want to benefit the SPA or Emmaüs from their estate. If it is to the detriment of a reserved heir, it will be necessary to return: in money, in kind, in real estate. » On the other hand, if a donation was made not outside the inheritance portion but in advance of successionit is imputed on the share of the hereditary reserve of the child concernedand not on the available quota.
