Compulsory Heirship: How to Calculate the Share Due to Each Heir?

Imagine the scene: in Decazeville, in the Aveyron, a family home is for sale after the death of Mrs D. Her two children, reserved heirs, discover that their mother had, a few years earlier, donated almost all of her estate to a charity. Result: has the compulsory share (the minimum portion guaranteed by law to heirs) been respected? This type of conflict may be happening to you right now, or you may have feared it when planning your succession. The court of Marseille, in a decision of 8 January 2024, has clarified the method for calculating the compulsory share and the disposable portion (the part of the estate that the deceased can freely allocate).

This case is a wake-up call for all property owners and heirs, from Rodez to Onet-le-Château. Because behind the figures and articles of law, family stories are unfolding: siblings drifting apart, contested wills, hastily sold assets. If you own property, or if you have to manage a succession, understanding these mechanisms is essential to avoid your wishes being challenged – or to defend your rights.

This judgment does not create a legal revolution, but it clarifies a calculation method that is often misunderstood. So, how did the judges decide? And you, what should you do if you are affected? Let's dive into this decision together.

The facts: a story like many others

Mr X, a retiree in Decazeville, had three children: A, B and C. In 2015, he made a gift to his son A of a flat worth €100,000. Upon his death in 2023, his remaining estate amounts to €200,000. In his view, he had thus favoured A without depriving the others, but the calculations were not so simple. The other two children, B and C, brought an action before the court of Marseille, arguing that their compulsory share (which is half of the estate in this case, since there are three children) had not been respected.

The dispute focused on the calculation method: should the prior gift be taken into account to determine the mass of the estate (the total of the deceased's assets)? And how should the disposable portion (what the deceased could freely give) be valued? The parties disagreed on the collation of gifts to the succession (the reintegration of gifted assets to reconstitute the mass). A's lawyer argued that the gift was made as an advancement of the share of the estate, so that B and C's rights were preserved. B and C contested this point.

The judgment first ordered an expert appraisal to reconstitute Mr X's estate as at the date of his death, including the gift. The judges recalled that any gift must be taken into account, whether it is subject to collation or not, to check whether the compulsory share has been encroached upon. Finally, the court calculated that the gift to A was €100,000, the notional estate mass (aggregation of gifted assets and existing assets) was €300,000, and the total compulsory share (½ for three children) was €150,000, i.e. €50,000 per child. A had already received €100,000, so he had to compensate his siblings to the tune of €50,000 in total, by means of the reduction of the excessive gift (action for reduction). The case was referred back for precise assessment of the compensation.

The court's reasoning — dissected

The court relied on Articles 912 et seq. of the Civil Code, which define the compulsory share and the disposable portion. But concretely, how is it calculated? Article 912: the compulsory share is the portion of assets that the law ensures passes free of charges to certain heirs (the reserved heirs). In the case of children, the compulsory share is one-half, two-thirds or three-quarters depending on the number of children.

The judges recalled that the disposable portion is calculated on the basis of the notional estate mass: we add the value of the assets existing at death and the value of the gifted assets (even those given outside the share) at the time of the gift, updated to the value at death. This is known as the collation of gifts (Article 843 of the Civil Code: every heir must bring into hotchpot what they received by way of gift, unless exempted).

In this case, A argued that the gift was made as an advancement of the share of the estate, which means it is charged against his compulsory share. But the court held that even in that case, it must be verified that the gift does not exceed the disposable portion, because it may encroach on the compulsory share of the others. The judge specified: the gift must be notionally brought into account to calculate the disposable portion, then what each child has received is compared. If the gift exceeds the disposable portion, it is reducible.

An important point: the court did not follow the argument of B and C who wanted the gift to be valued at the date of the gift. It applied the rule of valuation at the date of death, which is more favourable to reserved heirs (because the value may have increased). This solution is consistent with the settled case law of the Court of Cassation (Civ. 1st, 12 June 2013).

Finally, the judges confirmed the classic calculation: mass = €200,000 (existing) + €100,000 (gift) = €300,000. Compulsory share (for 3 children) = 1/2 = €150,000, i.e. €50,000 per child. Disposable portion = €150,000. A having received €100,000, did he not exceed his individual share (€50,000)? No: he actually received €100,000, which exceeds his individual compulsory share by €50,000. He must therefore compensate the others for the excess, to the tune of €50,000 (to be shared between B and C).

What this means for you — practically

If you are a property owner (in Rodez, Onet-le-Château or elsewhere), you should know that your gifts are not inconsequential. Before benefiting a child or relative, calculate whether the gift does not exceed the disposable portion, especially if you have several children. Concrete example: you have two children and an estate of €400,000. The total compulsory share is 2/3 (i.e. €266,666), i.e. €133,333 per child. The disposable portion is 1/3 (€133,333). If you give €150,000 to one of your children, this gift exceeds the disposable portion by €16,667, and the other child can claim compensation. To avoid this, draft a gift in division which distributes the assets in a balanced way.

If you are a reserved heir, you can bring an action for reduction (Article 920 of the Civil Code) within 5 years of the death, or within 2 years of discovering the infringement. This action allows excessive gifts to be reduced and your due to be recovered. Note: the compensation is payable in value, unless the gifted asset is still in the estate of the beneficiary heir, in which case it can be claimed in kind.

If you are a tenant or purchaser of an asset forming part of a succession, be vigilant: a sale may be annulled if it relates to a gifted asset and the action for reduction is brought. In practice, the notary must check prior gifts. Do not sign an agreement without ensuring that the reserved heirs have waived their rights or that the gift respects the disposable portion.

Finally, for couples without children, parents are reserved heirs within certain limits. The Marseille decision recalls that the protection of reserved heirs is a matter of public policy: it cannot be derogated from by will or gift.

Four tips to avoid this type of dispute

• Carry out a full estate review: calculate the value of your assets, your prior gifts, and estimate your disposable portion. A notary or lawyer can help you model different scenarios.
• Use a gift in division: this notarial deed allows you to distribute your assets among your children during your lifetime, definitively fixing the shares, which avoids future disputes. Each child receives their compulsory share.
• Provide for a revaluation clause: if you give an asset, stipulate that the value is updated at the date of death for collation, or opt for a gift with charges (e.g., life interest) to reduce the impact.
• Draft a will with full knowledge of the facts: if you wish to favour an heir beyond the disposable portion, know that this is possible, but it will reduce the share of the others. Inform your heirs to avoid surprises.

Further reading: related case law and developments

The Marseille decision is part of a consistent line: see for example the judgment of the Court of Cassation of 10 November 2015 (No. 14-24.938) which recalled that the collation of gifts is done at value at the date of death, even for gifts made outside the share. In contrast, a judgment of the Paris Court of Appeal of 17 January 2018 specified that a gift made to a reserved heir is charged first against his compulsory share, then against the disposable portion. The Marseille court applies the same logic.

A recent trend: courts are becoming stricter on the valuation of gifts, especially gifts of real estate that have increased in value. Case law encourages systematic expert appraisal to avoid fraud. For the future, a reform could simplify the calculation by imposing a fixed scale, but nothing is on the agenda. Caution: the limitation period for the action for reduction can be invoked, but it is often poorly understood. If you are an heir, act quickly.

Checklist before acting

• Do I have a reserved heir? (child, parent, surviving spouse within certain limits) – If yes, the compulsory share is protected.
• Have I made any prior gifts? – Calculate the notional estate mass.
• What is my disposable portion? – Determine the free fraction (1/2 for 1 child, 1/3 for 2, 1/4 for 3 or more).
• Have I respected this disposable portion? – If not, your reserved heirs can bring an action for reduction.
• Do I have a will or gift that could be contested? – Consult a lawyer to assess the risk.

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