Hereditary Reserve and Available Quota: Protect Your Heirs

You own a house in Caen or Hérouville-Saint-Clair, and you wonder whether you can leave all your property to your spouse or to only one of your children? The answer is no, not entirely. French law protects your children by reserving for them a minimum share of your estate: this is the hereditary reserve. The remainder, called the available quota, allows you to freely benefit whomever you wish. The Tribunal judiciaire de Nice, in a decision of 7 January 2025, has clarified the rules for calculating these fundamental concepts. This case pits children-heirs against the second wife of their deceased father, a dispute that resonates in many families.

Imagine: a family father, after a second marriage, drafts a will leaving almost all his estate to his new wife, to the detriment of his three children from a first union. Upon his death, the children discover they will inherit almost nothing. What to do? The Nice court had to decide: is the will valid? Can the children recover their share? The answer is in one word: the hereditary reserve. And the calculation is far from intuitive.

This decision is a reminder for all those considering making a will or inheriting. It confirms that testamentary freedom has its limits, especially when reserved heirs (descendants, ascendants) exist. Through the concrete example of the Nice court, we will break down the rules and give you the keys to anticipate or react.

The facts: a story that happens every day

Mr. Pierre L., a 78-year-old retiree, lived in Hérouville-Saint-Clair. He remarried Jeanne, with no common children. From his first marriage, he had three children: Marc, Sophie and Julien. Upon his death, his estate consisted of a house in Caen (valued at €300,000), a bank account of €50,000 and some investments. By holographic will (handwritten), drawn up a few years earlier, he bequeathed to Jeanne the usufruct of the house and all the liquid assets, i.e. nearly €350,000.

The children, although close to their father, consider themselves wronged. They discover that the part of their father's estate that is rightfully theirs (the reserve) is considerably reduced by this will. An attempt at conciliation with Jeanne fails: she considers that the will reflects the deceased's wishes and that she needs these assets to live. The children then bring proceedings before the Tribunal judiciaire de Nice (competent due to the location of certain immovable assets).

The dispute concerns the calculation of the individual hereditary reserve and the available quota. The children argue that the will exceeds the available quota because it allocates them less than the reserve. Jeanne retorts that the will is valid and that the available quota is higher, given previous gifts that the children may have received. The court must decide: what is the amount of the reserve for three children? How to take into account previous gifts?

The case is complex: it requires reconstructing the deceased's estate, evaluating previous gifts (a loan to Sophie to buy an apartment), and applying the articles of the Civil Code. The hearing took place in October 2024. The children are represented by a specialised lawyer, as is Jeanne. The court delivers its judgment in January 2025, partially in favour of the children: the will is reduced to the available quota, and Jeanne must return certain assets.

The reasoning of the court — analysed

The court applied Articles 912 et seq. of the Civil Code, which define the hereditary reserve and the available quota. These texts are clear: the reserve is the part of the assets and inheritance rights that the law guarantees to certain heirs, known as reserved heirs (descendants, and failing that, ascendants). The available quota is the part that the deceased may freely allocate by gift or will.

For three children, the total hereditary reserve is three-quarters of the estate. This means the children must receive at least 75% of the estate, and the deceased may freely dispose of only the remaining quarter (the available quota). This percentage is fixed by Article 913 of the Civil Code: for three or more children, the reserve is 3/4, the available quota is 1/4.

The judges first assessed the estate: house + accounts + investments = €350,000. But they also had to integrate previous gifts made to the children. Indeed, Article 922 requires fictitious adding back of gifts to calculate the reserve and available quota: the value of the gifts is added to the existing assets to reconstitute the calculation base. Here, the €20,000 loan to Sophie was in fact a disguised gift (failing proof of repayment). The calculation base therefore amounts to €350,000 + €20,000 = €370,000.

Thus, the total reserve for the three children is 3/4 × €370,000 = €277,500. That is €92,500 each. The available quota is 1/4 × €370,000 = €92,500. Pierre's will bequeathed to Jeanne assets worth €350,000, well above the available quota of €92,500. It therefore encroaches on the children's reserve, which is prohibited. The court therefore ordered the reduction of the liberalties (will) to the extent of the available quota, and ordered Jeanne to return the excess assets to the children, up to the amount of their reserved rights.

The magistrates also rejected Jeanne's argument that the children had already received their reserve through other donations. The court checked: the gifts brought into account did not reach the individual reserve. The judgment, consistent with constant Court of Cassation precedent, confirms that the reserve is a public policy right that cannot be waived in advance (except in exceptional circumstances).

What this means for you — practically

This decision concerns you, whether you are a parent, child or surviving spouse. Here are the practical implications:

For parents

If you wish to favour your spouse or one child over others, you cannot do so beyond the available quota. For example, if you have three children and an estate of €400,000, you can freely bequeath only €100,000 (the quarter). The rest (€300,000) is reserved for your children. If you have two children, the reserve is two-thirds (so an available quota of one-third). One child? The reserve is half, the other half is free. These calculations are mandatory.

For heirs

If you are a child and receive less than your reserve, you can bring an action for reduction of liberalties (will or gift). Caution: the action for reduction is time-barred after 5 years from the opening of the succession, or after 2 years from the discovery of the infringement of the reserve, as the case may be. Do not delay! Like the children in our case, you must quickly consult a lawyer to assess the situation.

Example in Caen

Take a concrete case: a father residing in Caen, two children, an estate of €500,000 (house + investments). He wants to give everything to his new partner. The available quota for two children is 1/3, i.e. €166,666. The will exceeds this amount. The children can therefore request the reduction of the will to €166,666 and recover the rest (€333,334) in equal shares. Without action, they would lose their reserve.

Four tips to avoid this type of dispute

• Inform yourself about the reserve before making a will: Before drafting a will, list your reserved heirs (children, grandchildren by representation, ascendants). Calculate the available quota according to their number. A notary can help you respect these limits.
• Prefer gradual or residual gifts: To favour your spouse without depriving your children, you can bequeath them the usufruct (right to use and receive income) while reserving the bare ownership to the children. The reserve relates to full ownership: usufruct is not included in the available quota (unless combined with other liberalties).
• Keep an accurate register of your gifts: To avoid surprises during the calculation, note each gift (amount, date, beneficiary) and revalue it regularly. Previous gifts are addable to the estate, even if you think they are final. A tracking table is recommended.
• Inform your heirs of your intentions: Transparency is often the best prevention. Explain your choices to your children: why you are favouring your spouse, or why you are giving more to a disabled child. This avoids conflicts and legal challenges.

Further study: related case law and developments

This decision is part of a consistent line of the Court of Cassation, notably the decision of 3 March 2010 (n° 09-10.837) which recalls that the hereditary reserve is a matter of public policy. The trial judges, like the TJ de Nice here, simply apply the rules without innovation. However, there is a trend towards flexibility in favour of the surviving spouse: the law of 3 December 2001 strengthened his/her rights, but without questioning the children's reserve. Another recent decision (Civ. 1re, 12 September 2019) specifies that gifts are valued at the date of partition, not at the date of the gift, which may increase the reserve. The future legislative might see debate on reducing the reserve in favour of the spouse, but for now, the rule remains protective of descendants.

What you must absolutely remember

FAQ:

• What is the hereditary reserve? It is the minimum share of the estate that the law reserves for descendants (children, grandchildren) or, failing that, ascendants (parents). It cannot be suppressed by will or gift.
• How is the available quota calculated? It is the complement of the reserve. For one child: 1/2; two children: 1/3; three children or more: 1/4 of the estate (after adding previous gifts).
• Can I disinherit one of my children? No, not completely. You can only remove his/her share in the available quota, but he/she will always receive the reserve. If you want to deprive him/her, he/she must renounce the succession or you must prove a ground of unworthiness.
• What if my spouse wants to leave everything to one child? As a wronged child, you can bring an action for reduction within 5 years of the death. It is advisable to quickly consult a lawyer specialising in succession law.
• What are the time limits to contest a succession? The action for reduction of excessive gifts is time-barred after 5 years from the opening of the succession (or 2 years if you discover the infringement later). After this period, you lose all recourse.

Do you find yourself 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 →