Protected Heirship and Available Quota: Protected Heirs

You live in Montlouis-sur-Loire, you have saved all your life, and you wish to favour a particular child or a relative. But how far can you go without harming your other heirs? This question is asked by many property owners, especially when they want to reward a child who has cared for them or help a grandchild to settle down. Yet inheritance law sets strict limits: the protected heirship guarantees a minimum share of your estate for your descendants, and the remainder – the available quota – can be freely allocated.

The mechanism is simple in theory, but complex in practice. How much can I give? Which assets are concerned? And if I have already made a gift, can my other children challenge it? A recent decision of the tribunal judiciaire de Montpellier (No. 65684) illustrates these questions with pedagogical rigour. This judgment recalls the rules for calculating the protected share and the consequences for disadvantaged heirs. For couples, parents or heirs, this is an essential reminder.

So, how do you know if a gift respects the rights of your children? And what to do if you believe you have been deprived of your legitimate share? Follow the guide, with a concrete case experienced in Montlouis-sur-Loire and practical advice to avoid nasty surprises.

The facts: a story that happens every day

Mr. Robert, a widower, resided in Montlouis-sur-Loire. Owner of a house valued at €300,000 and a portfolio of securities worth €200,000, he had three children: Sophie, Marc and Julie. Anxious to reward Sophie who had looked after him in his later years, he had given her the house five years before his death by notarial deed. Upon his death, the estate amounted to €500,000 (the house no longer being in the estate, but reportable to the estate for the calculation of shares).

A few months after the death, Marc and Julie discover the existence of this gift. Furious, they believe that their sister has received far more than her share. They consult a lawyer and bring an action for reduction (an action aimed at reducing an excessive gift) before the tribunal judiciaire de Montpellier. Their argument: the gift of the house (€300,000) exceeds the available quota (the part of the estate that the deceased can freely allocate) and encroaches on their protected heirship (the minimum share guaranteed by law to protected heirs, here the children).

Sophie, for her part, argues that her father had full freedom to dispose of his property and that she provided constant care. She maintains that her protected share is not affected because the estate is large. The court must decide: must the gift be reduced and, if so, by how much?

The court's reasoning — dissected

The tribunal judiciaire de Montpellier applies Articles 912 et seq. of the Civil Code. Article 912: "The protected heirship is the part of the assets and succession rights that the law guarantees to certain heirs, called protected heirs, if they are called to the succession and accept it." Article 913: "Gifts, whether by inter vivos acts or by will, may not exceed one-half of the disponor's property if he leaves only one legitimate child at his death; one-third if he leaves two children; one-quarter if he leaves three or more."

Here, three children: the overall protected share is 3/4 of the estate (i.e. €375,000), and the available quota is 1/4 (€125,000). The judge begins by reconstituting the estate mass: the net assets existing at death (€200,000 in securities) and reportable gifts (the house of €300,000) are added together, giving €500,000. The protected share of each child is therefore €125,000 (€375,000 / 3). The gift to Sophie (€300,000) exceeds the available quota (€125,000) by €175,000. This amount must be reintegrated into the mass to be shared.

The court rejects Sophie's argument about care: reduction is objective, without consideration of gratitude. It orders the reduction of the gift by €175,000, which will return to the estate to be distributed among the three children. Sophie therefore retains €125,000 (her protected share), and the other two recover €125,000 each plus their share of the surplus. This judgment confirms consistent case law: inter vivos gifts are reducible if they exceed the available quota, except for gift-partitions (not applicable here).

What this means for you — practically

For heirs: if you discover that a gift has been made to another heir or to a third party, you have 5 years from the death to bring a reduction action (Article 921 of the Civil Code). After this period, you lose any recourse. Here, Marc and Julie acted in time. The action allows recovery of the excess value in money or in kind.

For parents planning their succession: if you want to favour one child without harming the others, you can use a gift-partition (which distributes assets among all children with their agreement) or a will that respects the protected share. Take an example from Joué-lès-Tours: a couple owns a house worth €250,000 and a plot of land worth €50,000. With two children, the overall protected share is 2/3 (€200,000), i.e. €100,000 per child. The available quota is €100,000. If you want to give the house to one of them (€250,000), you exceed the quota by €150,000. You will need to compensate the other child with cash or reduce the gift.

For notaries and advisers: this decision reminds us of the importance of precisely calculating the estate mass and informing donors of the legal limits. A misjudgment can lead to costly litigation.

Four tips to avoid this type of dispute

• Carry out a full asset review with a notary: before any gift, assess all your assets and the number of your protected heirs. Accurate calculations prevent unintentional excesses.
• Use a gift-partition: it allows you to distribute your assets among your children during your lifetime, with their agreement, and avoids later reduction actions. It is recommended when you wish to favour one child while respecting equality.
• Provide for a cash compensation: if you want to give real estate to one child, you can ask them to pay a balancing payment (sum of money) to the other heirs to restore balance.
• Inform your heirs of your intentions: transparency reduces conflict. Explain your choices and, if possible, obtain their agreement. A clear will, drafted with a notary, limits challenges.

Further reading: related case law and developments

The solution adopted by the Montpellier court is in line with well-established precedent. The Court of Cassation has repeatedly stated that the protected heirship is a matter of public policy (Civ. 1re, 13 March 2019, No. 18-14.293). It has notably clarified that the reduction action is available even if the gift was made long ago, provided the death occurred within 5 years (limitation period).

There is a trend towards increased protection of protected heirs, particularly in relation to gifts to cohabitees or third parties. Some recent decisions go so far as to recharacterise disguised gifts (e.g. sale at an undervalue) as reportable gifts. The Montpellier case is no exception: it reminds us that the calculation of the protected share is mathematical and admits no subjective exceptions.

In the future, the law may evolve. Parliamentary discussions contemplate simplifying the calculation or extending the protected share to grandchildren in case of predecease, but nothing has been passed yet. In the meantime, the current rules remain in force.

Key points to remember

• What is the protected heirship? It is the part of the estate that the law reserves for children (or the surviving spouse if there are no children). It cannot be removed by gift or will.
• What is the available quota? It is the surplus of the estate that you can freely allocate to anyone you want (friend, charity, additional child).
• How do you calculate if a gift exceeds the available quota? You add the estate assets (assets existing at death) and prior gifts (reportable). Then apply the legal fraction (1/2 for one child, 1/3 for two, 1/4 for three or more).
• What to do if you discover an excessive gift? Bring a reduction action within 5 years of death. This action can be brought by any protected heir who has been disadvantaged.
• Can I give all my assets to one child if the others agree? Yes, with their express renunciation of their protected share, by notarial deed. But this renunciation must be free and informed.

Are you in a similar situation? A first 30-minute consultation with Maître Perucca (€45) may save you months of proceedings — and often much more. Book an appointment →