{"id":19887,"date":"2026-10-13T14:44:23","date_gmt":"2026-10-13T12:44:23","guid":{"rendered":"https:\/\/ftpa.com\/?p=19887"},"modified":"2026-10-13T14:44:28","modified_gmt":"2026-10-13T12:44:28","slug":"when-a-will-is-not-enough-french-forced-heirship-the-dpc-clarification-and-what-it-means-for-hong-kong","status":"publish","type":"post","link":"https:\/\/ftpa.com\/en\/when-a-will-is-not-enough-french-forced-heirship-the-dpc-clarification-and-what-it-means-for-hong-kong\/","title":{"rendered":"When a Will Is Not Enough: French Forced Heirship, the DPC Clarification, and What It Means for Hong Kong"},"content":{"rendered":"\n

France’s DPC clarification matters for Hong Kong’s international families \u2014 but Cap. 481, domicile gaps, and French nationals in Hong Kong mean the risks remain very real<\/em><\/strong><\/p>\n\n\n\n

Hong Kong has recently overtaken Switzerland as the world’s largest cross-border wealth hub, with BCG’s Global Wealth Report 2026<\/a> recording USD 2.9 trillion in cross-border assets under management. Against that backdrop, the intersection of French forced heirship rules and common law testamentary freedom is no longer a niche concern affecting only a handful of Anglo-French families. It is a live issue for a significant and growing segment of Hong Kong’s internationally mobile client base: French nationals living in Hong Kong, Hong Kong permanent residents who own property in France, British nationals in Hong Kong with French assets, and European family offices now actively establishing operations in the city.<\/p>\n\n\n\n

For these clients, the European Commission’s recent clarification on the French droit de pr\u00e9l\u00e8vement compensatoire<\/em> (DPC) is important news. But it is not, as we shall explain, the end of the story.<\/p>\n\n\n\n

The Common Law foundation: Testamentary freedom in Hong Kong and England<\/strong><\/h2>\n\n\n\n

Hong Kong’s succession law is built on the common law principle of testamentary freedom. As a general rule, a person making a will in Hong Kong is free to leave their assets to whomever they choose. That freedom is constrained only by the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481)<\/a>, which enables certain categories of persons to apply to the court for reasonable financial provision from a deceased person’s estate where none has been made. Cap. 481 applies where the deceased was either domiciled in Hong Kong or ordinarily resident in Hong Kong at any time in the three years immediately preceding their death. There is no concept of forced heirship in Hong Kong, and no portion of an estate is automatically reserved for any heir.<\/p>\n\n\n\n

Cap. 481 is a discretionary remedy. Unlike a fixed forced heirship entitlement, it requires an applicant to satisfy the court that the deceased’s dispositions failed to make reasonable financial provision for them. Adult children face a particularly high threshold: they must generally demonstrate that they were being maintained by the deceased immediately before death. The court then exercises broad discretion in determining what provision, if any, to order. This is a fundamentally different legal framework from the automatic, mathematically fixed entitlement that French law confers on children.<\/p>\n\n\n\n

The position in England and Wales is broadly analogous. The Inheritance (Provision for Family and Dependants) Act 1975<\/a> (the 1975 Act) provides a comparable discretionary remedy, and it is the English statute \u2014 rather than Cap. 481 \u2014 that has been at the centre of the recent Franco-European debate. Understanding the distinction between the two, and its significance for Hong Kong-based clients, is essential.<\/p>\n\n\n\n

The French R\u00e9serve H\u00e9r\u00e9ditaire<\/em>: A fixed entitlement<\/strong><\/h2>\n\n\n\n

Under French succession law<\/a>, the r\u00e9serve h\u00e9r\u00e9ditaire<\/em> is a legally protected share of the estate that must pass to the deceased’s children regardless of any testamentary direction to the contrary. The reserved proportion is fixed by reference to the number of children: one child is entitled to one half of the estate; two children share two thirds; and three or more children share three quarters between them. The balance \u2014 the quotit\u00e9 disponible<\/em> \u2014 may be disposed of freely. This regime reflects a deep-rooted public policy commitment to intergenerational wealth protection.<\/p>\n\n\n\n

For clients in second marriages or blended family structures who wish to leave their entire estate to a surviving spouse or partner, French forced heirship constitutes a significant obstacle wherever French property forms part of the estate.<\/p>\n\n\n\n

Brussels IV: The choice of Law tool<\/strong><\/h2>\n\n\n\n

The EU Succession Regulation (EU) No 650\/2012<\/a>, known as Brussels IV, came into force across most EU Member States in August 2015. Its central purpose was to harmonise cross-border succession within the EU by providing that a single law \u2014 by default, the law of the deceased’s habitual residence at the time of death \u2014 governs the succession of the entire estate, regardless of where assets are located.<\/p>\n\n\n\n

Under EU law, habitual residence<\/em> is determined on a case-by-case basis, taking into account the circumstances. When it is debatable, it should not be presumed and qualified legal counsel should be sought on this point.<\/p>\n\n\n\n

Article 22 of the Regulation permits an individual to elect the law of their nationality to govern their succession, with the concept of renvoi<\/em> expressly excluded where such an election is made.<\/p>\n\n\n\n

For nationals of common law jurisdictions with property in France, this election has been a vital planning tool. The European e-Justice Portal<\/a> provides a useful overview of how the Regulation interacts with national succession rules across Member States. For British nationals, the additional benefit was the ability to pass French assets to a surviving spouse free of the UK’s 40% Inheritance Tax<\/a> through the spousal exemption \u2014 a tax-planning consideration that does not arise in Hong Kong, where estate duty was abolished in 2006<\/a>.<\/p>\n\n\n\n

France\u2019s countermeasure: The Droit de Pr\u00e9l\u00e8vement Compensatoire<\/em><\/strong><\/h2>\n\n\n\n

In 2021, France amended Article 913 of the French Civil Code<\/a> to introduce the DPC. Where the deceased or any of their children was, at death, an EU national or habitually resident in an EU Member State, and the applicable foreign law contains no mechanism protecting children’s inheritance rights, those children may claim financial compensation directly on assets located in France (but only on those assets that are located in France). French notaires<\/em> are required to identify affected children and notify them of this entitlement.<\/p>\n\n\n\n

This provision was enacted in response to two high-profile cases, in which worldwide famous musicians from France, namely, Michel Colombier and Maurice Jarre, had settled in California and made arrangements under Californian Law to have all their assets, including the assets located in France, inherited, through a trust mechanism, by their widow, at the expense of their children – notably of children from prior relationships.<\/p>\n\n\n\n

In two notorious judgments of 2017[1]<\/a>, the French Supreme Court (Cour de cassation<\/em>) ruled that the r\u00e9serve h\u00e9r\u00e9ditaire<\/em> is not included in the international public policy (\u201cpublic order\u201d) of French Law, which must be preserved in all and every situation. As such, it validated the exclusion of the r\u00e9serve h\u00e9r\u00e9ditaire<\/em> including on the assets located in France, to the benefit of the application of the American Law, and of its testamentary freedom.<\/p>\n\n\n\n

<\/a>\u00a0This outcome was seen as unsatisfactory by the French legislator, who amended Article 913 of the French Civil Code with the purpose of allowing children – subject to the conditions outlined above – to claim compensation on the assets of the deceased that are located in France.<\/p>\n\n\n\n

The DPC was immediately controversial. Many practitioners and affected families argued that it directly undermined the purpose of Brussels IV by allowing domestic French legislation to override a Regulation-compliant choice of law election. Numerous complaints were lodged with the European Commission<\/a>, which opened a formal investigation.<\/p>\n\n\n\n

The European Commission\u2019s clarification<\/strong><\/h2>\n\n\n\n

On 4 June 2026, the European Commission published its formal response to the complaints<\/a> registered under reference CPLT(2022)03325. The Commission concluded that the matter was about to be closed, accepting, and circulating, France’s explanation that the DPC is consistent with Article 35 of the Regulation, which permits a Member State to disapply a chosen foreign law where its application would be manifestly incompatible with the public policy (ordre public<\/em>) of the forum.<\/p>\n\n\n\n

The critical clarification is that the DPC will not be triggered where the chosen foreign law already provides a mechanism for protecting children. France explicitly acknowledged that the family provision regime under the 1975 Act qualifies as such a mechanism. The Society of Trust and Estate Practitioners (STEP)<\/a> has noted that the Commission’s response offers some comfort to those concerned about the DPC, while cautioning that important questions remain unanswered. It is important to note that the Commission’s conclusion is not binding on French courts, and the opinion of the French government is precisely that \u2014 an opinion. Until the matter is tested before the European Court of Justice, the DPC cannot simply be disregarded.<\/p>\n\n\n\n

Why this matters differently for Hong Kong<\/strong><\/h2>\n\n\n\n

The significance of the Commission’s clarification for Hong Kong-based clients is both real and limited, and the distinction deserves careful attention.<\/p>\n\n\n\n