An agreement on future succession is a legal act whose object is rights over an inheritance that has not yet been opened. This inheritance may concern either the contracting party or a third party.
Relaxation of Prohibition
Article 770 of the Civil Code provides that “the option cannot be exercised before the opening of the succession, even by marriage contract.”
Similarly, Article 722 states that “agreements whose purpose is to create rights or to waive rights over all or part of an inheritance not yet opened or an asset depending on it only produce effect in cases where they are authorized by law.”
The Law of June 23, 2006 introduced the family pact, which constitutes a serious exception to the principle prohibiting agreements on future successions.
Criteria for Future Succession Agreement
Jurisprudence has clarified the criteria for agreements on future successions. While most definitions describe such agreements as contractual, case law has sometimes qualified even unilateral acts as prohibited agreements, as seen in Cass. 1st civ., March 17, 1987 (n° 85-16484).
A 1933 ruling used the broad term “stipulation,” and the existence of an agreement on future succession may be established as soon as the convention concerns an element, a share, or the entire un-opened succession (Cass. civ., Nov. 11, 1845).
Such an agreement grants only a potential right, since the succession has not yet opened.
Permitted Conventions
According to Article 722 of the Civil Code, amended by the law of December 3, 2001, only agreements authorized by law can produce effects concerning an unopened inheritance.
Therefore, some mechanisms escape nullity either because they do not constitute true agreements on future succession (such as the post-mortem promise) or because the law permits them as family arrangements.
The Post-Mortem Promise
A person may undertake obligations that will only be executed upon their death.
Thus, agreements that take effect only after death do not fall under the prohibition on agreements concerning future successions, so long as they do not involve transferring the succession itself or any part of it.
For instance, a dowry payable upon death is valid.
According to legal doctrine, the post-mortem promise is valid because the right it confers is actual, with only its enforcement deferred until the death of the promisor. Jurisprudence supports this interpretation, having rejected the prohibition of such promises on the grounds that the beneficiary acquires an “actual pure and simple right,” with enforcement merely postponed until death (Cass. 1st civ., May 30, 1984, n°84-11795; Cass. 1st civ., July 9, 2003, n°00-21163).
Ascendants Partition
The “ascendant’s partition,” also called “gift-partition” or “testamentary partition,” is an act whereby an ascendant distributes all or part of their succession among their descendants, by way of gift or testament.
The ascendant composes the lots themselves and ensures that each lot is at least equal to the reserved portion due to the beneficiaries (Civil Code, art. 1075 et seq.).
Contractual Institutions
Contractual institutions are a form of donation involving future assets, specifically those forming part of a succession.
These have been permitted between spouses since the Civil Code of 1804. Article 1092 of the Civil Code allows such liberalities to be granted in a marriage contract to future spouses. Among spouses, this is known as a “donation to the last survivor.”
Commercial Clause
The commercial clause has been admissible since 1985. Since January 1, 2007, it may provide that the surviving spouse can have the heirs agree to a lease concerning the building where the business is operated (Civil Code, art. 1390, para. 2).
Tontine Clause
The tontine clause, also known as the accretion clause, was long considered by the Court of Cassation as an agreement on future succession.
However, in a ruling on November 27, 1977, confirmed on January 11, 1983 (Cass. 1st civ., Jan. 11, 1983, n°81-13307), the Court recognized the tontine as a conditional (aleatory) contract due to the suspensive condition of the beneficiary’s survival.
Waiver of Action for Reduction
Since the 2006 reform, Article 929 of the Civil Code permits any presumptive forced heir to waive their right to bring an action for reduction in an unopened succession, in favor of one or more specific individuals.
The waiver can cover the entire reserved portion, part of it, or only a specific liberal provision.
Prior to 2006, such a waiver constituted a prohibited agreement on future succession.
Reversibility Clause
The usufruct reversion clause is no longer considered a prohibited agreement on future succession following a decision by the Court of Cassation’s First Civil Chamber on October 21, 1997 (n°95-19759).
Recognition of Debt and Agreements on Future Successions
In a ruling dated October 22, 2014 (n°13-23657), the First Civil Chamber clarified that “a convention that gives rise to an actual pure and simple right for its beneficiary, enforceable against the debtor’s succession,” does not constitute a prohibited agreement on future succession.
Thus, a recognition of debt enforceable only upon death is not considered such an agreement
Med venlig hilsen / Kind regards
Cabinet Nicolas BRAHIN
Advokatfirma i NICE, Lawyers in NICE
Camilla Nissen MICHELIS
Assistante – Traductrice
1, Rue Louis Gassin – 06300 NICE (FRANCE)
Tel : +33 493 830 876 / Fax : +33 493 181 437
