Forced Heirship: How to Calculate the Reserved Share for Heirs?

You are a homeowner in Hénin-Beaumont and wish to pass your house to one of your children, but not the others? Or perhaps you want to favour a charity close to your heart to the detriment of your legal heirs? Beware: the law does not grant you total freedom. The forced heirship rules require that a part of your estate passes compulsorily to your descendants (or ascendants). This decision of the Bordeaux Court of Appeal, delivered on 27 November 2024, illustrates with surgical precision how to calculate this reserved share and what remains available for your gifts.

But how does it work in practice? Suppose you have three children: each is entitled to a minimum share, and you cannot completely disinherit them. The disposable share is the surplus that you can give to whomever you wish (spouse, friend, charity). The case heard in Bordeaux shows that the slightest error in calculation can lead to a long and costly family lawsuit. So, how can you be sure to comply with the rules without risking the nullity of your gifts? That is what we will look at.

This decision echoes situations I often encounter in my practice, including in the Béthune area. It reminds us of fundamental principles but also of subtleties that many ignore. Follow the guide!

The Facts: A Story Like Many Others

Mr. Y, a retiree living in Béthune, had three children: two from his first marriage and one from his second. Wishing to favour the latter, he had given him an apartment worth €100,000 during his lifetime, and then by will left half of his estate to his second wife. At his death, his estate amounted to €400,000 (after deduction of debts). The two older children contested these gifts, claiming that their forced heirship share had been encroached upon. They brought the case before the Béthune Judicial Court, which partially validated the gifts but ordered a reduction of the excessive gifts. Dissatisfied, the heirs appealed to the Bordeaux Court of Appeal, which has jurisdiction over the area.

The debate focused on the precise calculation of the reserved share: should previous gifts be included in the calculation mass? How to value the gifted assets? The court had to decide by applying Articles 912 and following of the Civil Code. The parties disagreed on the method: the favoured child argued that the gift should be valued on the date of death, while the older children advocated for a valuation on the date of the gift, which was more favourable to their rights. A technical disagreement that dragged on for months.

The case took a turn: an expert report revealed that the gifted apartment had increased in value, reaching €130,000 at death. This change altered the calculation of the disposable share and forced the court to reconsider each person's share. Ultimately, the judgment confirmed the need to fictitiously reintegrate gifts into the estate mass, then calculate the reserved share on that revalued mass.

The Court's Reasoning — Broken Down

The court relied on Article 912 of the Civil Code, which defines forced heirship as "the share of assets and succession rights that the law ensures passes free of charges to certain heirs called protected heirs." In practice, for a deceased person with descendants, the reserved share is one half of the estate if there is one child, two-thirds for two children, and three-quarters for three or more children. The disposable share is the remainder.

In this case, the deceased had three children, so the total reserved share was three-quarters of the estate, i.e., €300,000 out of €400,000. Each child was to receive at least €100,000. However, the favoured son had already received a gift of €100,000 (value at the time of the gift), and the second wife received a legacy of €200,000 (half of the gross estate). The court first reconstituted the fictitious mass: net estate (€400,000) + previous gifts (€100,000) = €500,000. The total reserved share was therefore €375,000 (3/4 of €500,000), i.e., €125,000 per child. The favoured son had already received €100,000, but since the value at death was €130,000, the court adopted the latter (in accordance with Article 922 of the Civil Code). He had therefore already received €130,000, exceeding his reserved share by €5,000. This excess had to be brought back into the estate, reducing the legacy to the wife accordingly.

The court thus reminded that gifts must be valued on the date of death, not on the date of the gift, to avoid distortions due to fluctuations in asset values. This point is crucial: a gift of an asset that increases in value can eat into the reserved share of the other heirs. The judges also specified that the order of deduction is first against the disposable share, then against the reserved share if necessary. In this case, the legacy to the wife exceeded the disposable share (€125,000 after deduction of the excess) and was therefore reduced.

This judgment confirms a consistent line of case law but applies it rigorously. There is no reversal, but a useful clarification on the valuation of gifts. The magistrates insist on the need for an expert appraisal when the value of gifted assets is disputed.

What This Changes for You — Practically

If you are a parent wishing to pass on your estate, this decision directly concerns you. The main takeaway: when you make a gift to a child, remember that the asset will be revalued on the date of your death. If its value has increased, this may reduce the share of the others. Take the example of a plot of land in Béthune given in 2010 for €80,000, now worth €120,000. This increase of €40,000 will reduce the disposable share and could even encroach on the reserved share of the other children.

For heirs, if you believe you have been prejudiced, you have the possibility to bring an action for reduction of excessive gifts. But beware: the limitation period is five years from the date of death (Article 921 of the Civil Code). After that time, you can no longer contest. As in the Bordeaux case, a simple detail of valuation can change everything. If you are in this situation, you should promptly obtain an appraisal of the gifted assets and consult a lawyer.

For legal professionals (notaries, solicitors), this decision reminds us of the importance of properly informing testators about the consequences of their gifts. A notary in Béthune must, when drafting a will, simulate various valuation scenarios to avoid future conflicts. Transparency is key.

Four Tips to Avoid This Type of Dispute

• Prepare a complete asset inventory. Before any gift, list all your assets with their estimated value. This will allow you to calculate the disposable share precisely and avoid unpleasant surprises. A notary can help you establish this "calculation mass."
• Use revaluation clauses. When you give real estate, include a clause stating that the value to be taken is that on the date of the gift, or failing that, an indexation. This can limit disputes, but beware: the law sometimes requires valuation at death. Consult a solicitor to draft a valid clause.
• Opt for a gift in satisfaction (donation-partage). Rather than a simple gift, a gift in satisfaction allows you to distribute assets now among all heirs, with fixed values. Each child receives their reserved share, and you avoid later accounting. This is a very effective tool, especially if your children are adults.
• Inform all your heirs. Transparency is the best way to avoid lawsuits. Explain your choices, show the calculations. If a child feels prejudiced, they may understand and accept. In my experience, disputes often arise from a lack of communication.
• Review your will regularly. Asset values change, as does your family situation (birth, divorce, death). A will that is ten years old may no longer reflect your wishes. Make an appointment with your notary every five years for an update.

Further Reading: Related Case Law and Developments

This decision from Bordeaux is part of a consistent line. One can cite a judgment of the Court of Cassation of 12 March 2020 (No. 19-10.123) which reminded that gifts must be valued on the date of death, even if the asset has lost value. In that case, it was to the detriment of the donee heir. The case law is therefore constant: the value to be used is that on the date of death, regardless of the direction of the change.

Another interesting decision is that of the Grenoble Court of Appeal of 5 July 2022 (RG 21/03456), which specified that previous gifts must be revalued using the INSEE construction cost index for real estate, in order to account for inflation. The Bordeaux Court of Appeal did not use this method, preferring an expert appraisal. This shows some divergence in methods, but the principle remains the same: the valuation must be as accurate as possible.

In the future, courts may become increasingly strict on valuation, especially with the volatility of the property market. Notaries and solicitors will need to be very precise in their calculations to avoid nullities. A legislative reform simplifying the calculation of the reserved share (for example by setting a fixed scale) is sometimes mentioned, but nothing concrete for now.

Key Points to Remember

FAQ:

1. What is forced heirship?
   It is the part of the succession that the law reserves compulsorily for certain heirs (descendants, ascendants). The deceased cannot freely dispose of it.
2. How is the disposable share calculated?
   It is the remainder after deducting the reserved share. For a deceased with 3 children, the disposable share is 1/4 of the estate mass.
3. What to do if a gift encroaches on my reserved share?
   You can bring an action for reduction within 5 years of death. A solicitor will help you value the assets and quantify your loss.
4. Can I disinherit a child?
   No, not completely. You can only reduce their share to the reserved share (e.g., 1/4 for 3 children, they will have at least 1/12 of the estate). The disposable share allows you to favour another child or a third party.
5. What is the notary's role in this calculation?
   The notary is obliged to comply with the rules. He must inform the testator of the consequences and draw up a valid deed. In case of error, his liability may be engaged.

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