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Change in the law for
the inheritance of a surviving spouse (Part 2)
This
legal update concerns an issue which has received extra emphasis as a
consequence of the changes in the law referred to in Part 1 of this legal
update.
The
new law has abolished, by legislative means, any distinction between
children born in wedlock and those who were not so born.
This distinction had, in any event, been deemed to contravene the
European Convention on Human Rights as the previous law allowed children
born out of wedlock to be treated differently for inheritance purposes.
A
recent decision of the French final appeal Court (Cour de Cassation) of 29th
January 2002 upheld the right of a child born from a previous
‘relationship’ to contest the validity of a clause in a marriage
contract attributing all the property owned by the spouses to the survivor
of them, thus excluding the child from the inheritance.
The
impact upon the children of the spouses of such a clause in a marriage
contract should always be considered when contemplating the use of this
instrument, especially when one or both of the spouses have children from
other marriages or relationships. However,
it should be borne in mind that all of a spouse’s children are able to
contest such dispositions and that it would seem that there is no
particular time limit to the contest (other than the thirty year
prescription rule) and that the action has retroactive effect.
The consequences could be far-reaching for a spouse who sees his or
her inheritance dramatically reduced or even for a third party who has
since acquired property in which the child claims an interest.
05/02/2003
- Legal update
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