A case before the tribunal judiciaire de Paris could produce the first authoritative ruling on France's 2021 compensatory levy for disinherited children, a measure that many lawyers believe conflicts with the EU Succession Regulation and that has created significant complications for foreign-law wills covering French property.

The dispute concerns a French man who died in the Bahamas in 2022. He made a Bahamian will in 2019 and intended to leave his entire estate to his surviving spouse. One of his two sons is contesting the will before the Paris court. He asks the court to annul the will or, failing that, to award him a compensatory levy from French-situated assets. The deceased man's other son and the surviving spouse oppose the claim.

The legal framework at stake

EU Succession Regulation No 650/2012 provides that the law of a person's last habitual residence governs their succession, unless the person chose the law of their nationality in their will. The regulation is built on the principle of a single law applying to the succession as a whole.

France then introduced legislation in 2021 — now article 913, paragraph 3 of the Civil Code — allowing children in certain foreign-law successions to claim from French-situated assets up to the reserved portion they would have received under French forced heirship rules. The law applies where the testator or one of their children was an EU resident or citizen, and where the foreign law that will govern the succession lacks protections for children comparable to those in French law. In such cases, the notaire handling the estate must contact the children to inform them of their right to claim the levy.

The Paris case tests whether that mechanism can lawfully operate at all alongside the EU regulation. Bahamian law, in the common law tradition, is flexible on testamentary freedom, though children can in certain circumstances apply to a court for financial provision — usually where they are under 18, under 23 if in study or training, or disabled.

The challenge to the levy

Aurore Cressent, lawyer for the younger son and the surviving spouse, said the older son — the deceased's son from a previous marriage — lives in France and is a French national.

"Firstly, we are seeking that the Bahamian will should be followed," she said. "The idea is that the EU Succession Regulation establishes the principle of the unity of the law applicable to the succession."

She argued that only Bahamian law should apply, and that French law — and in particular the reserved portion — should have no bearing on the case. Her clients therefore seek to set aside the application of article 913, paragraph 3 of the Civil Code.

"The ground put forward is that the application of French law providing a compensatory deduction violates the principle of the primacy of EU law, given that the Succession Regulation provides for a single applicable law," she said. "In fact, we would like the Court of the European Union [CJEU] to make a ruling on this question of the conformity of the French law with European law."

Referral request delayed, not dismissed

The parties asked the Paris court to refer a question to the CJEU at a preliminary hearing earlier this year. The case-management judge rejected the request, holding that a referral is a matter for the court hearing the substance of the dispute. However, the judge invited the parties to make submissions on a possible referral to the CJEU — or alternatively a request for an opinion from the Cour de cassation — when the merits are considered.

"So, we asked a little early, but at least the question is out there," Cressent said. "I think the judge will be particularly careful about this matter."

She hopes to have a decision on the referral in 2027.

The 'functional equivalence' debate

The case also touches on a live controversy over what counts as sufficient child protection for the levy's own internal conditions to disapply it. In clarifications given by the French government to the European Commission, the government stated that English law's family provision rules — which allow children left in financial hardship to claim part of an estate — constitute a "functional equivalent" of the French reserved portion. Official sources describe the clarifications as setting out how the French government "interprets and applies" the law.

Some notaires remain unfamiliar with these clarifications, or reluctant to apply them, because no court has formally confirmed them.

Cressent said she was aware of complaints made to the European Commission about the 2021 law — many by Britons — but noted that the CJEU has not yet had a question formally addressed to it on the issue. She found it "strange" that the Commission declined to open an infringement case against France, instead accepting France's explanation that the levy rule does not apply where English law governs, the law applicable to most of the complainants.

Many lawyers consider the French authorities' functional-equivalence argument surprising, and consider that it poorly addresses the underlying clash between the 2021 law and the EU rules.

What the case means for practitioners

For private client lawyers and notaires advising international families with French assets, the stakes are considerable. A ruling from the Cour de cassation or the CJEU would clarify whether article 913(3) can operate at all where an EU-level choice of law points to a foreign system, and would resolve the current uncertainty that has seen notaires apply the levy regime inconsistently. Until then, estates governed by foreign law with French property remain exposed to levy claims by children, and drafting advice — particularly the choice of governing law in wills — must account for the unresolved conflict between French forced heirship and the regulation's unity-of-law principle.