The “reserved portion” is not part of the French international public policy

In two cases dated September 27, 2017, the Court of cassation found that the foreign law which does not know the concept of “reserved portion” is not contrary in itself to the French international public policy and cannot only be discarded if its concrete application to the case at hand leads to a situation which is incompatible with the principle of French law considered as essential.

In matters of succession, the applicable law by default is that of the last habitual residence of the deceased and not that of his nationality. It is thus frequent that the succession of a French citizen habitually residing abroad at the time of his death is dealt with under the foreign law, and that said foreign law does not know the “reserved portion” which, in France, is of public policy and prevents a parent from disinheriting his children.

A distinction must be made here between national public policy and international public policy, the latter having a narrower scope and allowing the rule out the application of a foreign law that would violate the international public policy to apply the French law instead.

In this case, the question was whether a foreign law which does not know the concept of reserved portion could be discarded in the name of international public policy. The Court of cassation answered negatively on the principle but did enter a reservation conditioned by the concrete appreciation of the situation: indeed, when the application of said foreign law leads to a situation that is incompatible with the principles of French law considered as essential, it must be ruled out in favor of the French law.

There is yet to determine what principles of French law considered as essential could justify to rule out the foreign law ignoring the reserved portion…

Let us note that in application of the Succession Regulation of July 4, 2012, applicable since August 17, 2015, one has the possibility to designate as applicable to his succession the law of his nationality, which means that the successions dealt with in France in application of foreign law ignoring the reserved portion have every chance to multiply in the future.