France: Inheritance Laws in the 19th and 20th Centuries
Inheritance law in nineteenth- and twentieth-century France was largely a product of the French Revolution. Succession laws before the Revolution were extremely diverse, complicated, and inequitable. The revolutionaries created a greatly simplified and very egalitarian inheritance system. The Napoleonic Code brought reforms to the revolutionary laws, but largely respected the same basic principles. Beyond that point, French inheritance laws remained fundamentally the same, with only a few reforms aimed principally at improving the situations of surviving spouses and illegitimate children.
I. Introduction: Inheritance Law Before the French Revolution
Prior to the French Revolution, inheritance law in France was extremely complicated: different rules applied, depending on whether the subject was an aristocrat or a commoner, a serf or a member of the middle class, a native or a foreigner, a man of the cloth or a layman, etc. In addition, the law did not treat women and men, elder and younger children, and legitimate and illegitimate children equally. Rules of succession could also differ according to the type of property in question. For example, specific rules applied to lands that were traditionally considered fiefdoms, whether or not these were still owned by an aristocrat or had been bought by a commoner. Additionally, succession laws were not the same throughout the French kingdom; on the contrary, they varied significantly from region to region.
II. The French Revolution and the Loi de Nivôse an II
The French Revolution brought enormous changes to succession law. While almost no one advocated entirely abolishing the concept of inheritance, much discussion was devoted to harmonizing succession laws with revolutionary ideals. As early as August 1789, the revolutionary assemblies agreed that distinctions between aristocrats and commoners, elder and younger children, and fiefdoms and other lands should be abolished. Furthermore, the revolutionary assemblies agreed that one set of laws should apply to the entire French territory, as opposed to the mosaic of local rules that existed under the ancien régime.
The revolutionaries aimed to put absolute equality at the center of succession laws, and to end the “paternal despotism” exercised through a father’s last will and testament. Although this may have originally been born of sincere ideological motives, these aims quickly gained political significance as the revolution sought to entrench itself. Indeed, placing all heirs in a position of equality had a tendency to divide large fortunes and big estates into smaller ones, as each heir got an equal share. As the owners of large fortunes and estates were generally presumed to be more reactionary, dividing their assets was seen as favorable to the revolution’s long-term impact. The revolutionaries also sought to favor younger heirs over older ones who might be nostalgic for the days of the ancien régime, and to prevent fathers from disinheriting heirs who might be favorable to the new order.
This led to the enactment of the Loi de Nivôse an II (Law of Nivôse, Year II, or January 1794, under the revolutionary calendar). This law imposed strict equality among heirs. If a decedent had children, nine-tenths of his/her estate would be strictly divided equally among them. The testator had discretion on the disposition of only the remaining tenth of his/her estate (called quotité disponible), and even this discretion was limited to the extent that the testator was required to bequeath the quotité disponible to beneficiaries outside the family so as not to disrupt the equality among heirs. If a decedent had no children, but had siblings, the quotité disponible was slightly increased to one-sixth, with the main body of the estate (five-sixths) distributed among the siblings and nephews. In the absence of both children and siblings, a decedent’s estate went to his/her parents, and then to his/her cousins, with an equal part going to the mother’s side and the father’s side. Surviving spouses were intentionally left out by the Loi de Nivôse an II.
In an effort to undermine the aristocracy and promote equality, the authors of this law made it retroactive to all successions opened since July 14, 1789. This retroactivity was, in turn, cancelled by a new governmental regime in 1796, creating much confusion and many legal complications.
III. The Napoleonic Code
A. Initial Period
Just a few years later, in 1804, Napoleon Bonaparte brought about a new reform of French inheritance law through the adoption of his famous Code Civil (Civil Code, also referred to as the Code Napoleon). Indeed, a substantial portion of the Napoleonic Code applied to inheritance: articles 718–892 dealt with successions, and articles 967–1100 (as well as much of articles 893–930) dealt more specifically with wills.
The authors of the Civil Code wanted to reconcile the various legal traditions that existed prior to the revolution, respect presumed “affections of nature,” and balance the rights of families with individual freedom. Additionally, the authors of the Civil Code strived to produce a highly practical legal text. Inheritance law under the Civil Code was “a law of transaction, but as during the revolution, a uniform and egalitarian law (art. 745 reaffirmed the equality of shares) but with a greater freedom to dispose” for the testator.
Universal succession became the principle under the Civil Code, meaning that the heirs inherit both the rights and liabilities of the decedent. The decedent’s property was (and still is) distributed to the heirs directly and immediately upon death, without the appointment of a personal representative or administrator. Furthermore, the Civil Code essentially confirmed the general principle established in the Loi de Nivôse an II, according to which heirs should be designated by law. This principle prevents a testator from disinheriting his/her children, reflecting the importance of enforcing familial solidarity under French law. Testamentary freedom was not completely abolished, however, and in fact, the Civil Code gave testators more discretion than the Loi de Nivôse an II by increasing the quotité disponible. Indeed, article 913 of the Civil Code of 1804 provided that “free gifts, whether by acts during life, or by will, shall not exceed the half of the property of the disposer, if he leaves at his decease but one legitimate child; the third part if he leaves two children; the fourth part if he leaves three or more of them.” Similarly, article 915 provided that the quotité disponible “shall not exceed a moiety of the property, if in default of children, the deceased leaves one of more ancestors in both the paternal and maternal line; and three fourths if he leaves ancestors only in one line.” Furthermore, the prohibition on giving this quotité disponible to one of the default legal heirs, which was established by the Loi de Nivôse an II, was repealed by the Civil Code, which contained no such prohibition.
The Civil Code’s provisions on inheritance law remained largely unchanged throughout the nineteenth and twentieth centuries. Indeed, French law of succession “was one dimension of family law to have undergone relatively little reform for over 200 years.”
What few reforms occurred mostly concerned the situation of the surviving spouse, and the situation of illegitimate children.
1. The Situation of the Surviving Spouse
Under the Civil Code, as under the laws of the ancien régime, the surviving spouse had very few rights to the inheritance in the absence of a will. Social norms of the time argued against the possibility of one family’s assets passing to another family, and it was also considered that the situation of a surviving spouse should have been considered in the marriage contract. This began to change towards the end of the nineteenth century, however: in 1891, a law was passed guaranteeing the surviving spouse’s use (though not necessarily ownership) of a quarter of the decedent’s property.
2. The Situation of Illegitimate Children
The situation of illegitimate children was also very unfavorable under the original Civil Code. Indeed, article 756 provided that “natural heirs are not heirs; the law does not grant to such any rights over the property of their father or mother deceased, except when they have been legally recognized. It does not grant them any right over the property of relations of their father or mother.” Article 757 then provided that, if the parents had legitimate children, an illegitimate child could only claim one-third of the hereditary portion that he/she would have had if he/she were legitimate. This share would extend to half if the parent had no descendants but many other immediate relatives, and three-fourths if the parent had neither descendants nor other immediate relatives. This changed over time, first in 1896, with a law increasing the illegitimate child’s legal share of inheritance, and then in 1907, with a law permitting the legitimation of natural children by the subsequent marriage of their parents. Further evolutions finally led to a 1972 law providing full equality to all children, legitimate and natural alike.
Prepared by Nicolas Boring
Foreign Law Specialist
 Romuald Szramkiewicz, Histoire du droit français de la famille [History of French Family Law] 60–61 (Paris, 1995).
 Id. at 62.
 Id. at 88.
 Id.; see also Ernest Vallier, Le fondement du droit successoral en droit français [The Foundations of Succession Law in French Law] 193–207 (Paris, 1903).
 Szramkiewicz, supra note 1, at 88.
 Id. at 88–89.
 Id.at 89.
 Id.at 89–90; Vallier, supra note 5, at 185–88.
 Szramkiewicz, supra note 1, at 90.
 Id. at 91.
 The Code Napoleon; or, the French Civil Code, Literally Translated from the Original and Official Edition, Published at Paris, in 1804, at 196–302 (George Spence trans., The Lawbook Exchange, Ltd., 2004) (1804).
 Szramkiewicz, supra note 1, at 111.
 Vallier, supra note 5, at 247.
 Szramkiewicz, supra note 1, at 111.
 Marie Goré, Inheritance Law, in Introduction to French Law 289 (George Bermann & Etienne Picard eds., Alphen aan den Rijn, 2012).
 Marie-France Nicolas-Maguin, Droit de la famille [Family Law] 115 (Paris, 1998).
 Szramkiewicz, supra note 1, at 113.
 The Code Napoleon, supra note 19, art. 913.
 Id. art. 915.
 Szramkiewicz, supra note 1, at 113.
 Helen Stalford, Family Law, in Principles of French Law 262 (John Bell, Sophie Boyron & Simon Whittaker eds., Oxford, 2008).
 Szramkiewicz, supra note 1, at 112.
 Id.; Vallier, supra note 5, at 378.
 The Code Napoleon, supra note 19, art. 756.
 Id. art. 757.
 Szramkiewicz, supra note 1, at 137–38.
Last Updated: 06/09/2015