January 01, 2018

Disinheritance vs. Forced Heirship : A Comparative Study Between the Succession Regimes of the United States and France

Elaine Lam

“Max, we love you and feel a great responsibility to leave the world a better place for you and all children,” writes Mark Zuckerberg in “A Letter to Our Daughter.” He continues, “But once we understand the world we can create for your generation, we have a responsibility as a society to focus our investments on the future to make this reality.” Zuckerberg and Priscilla Chan, with the help of U.S. succession regimes allowing testamentary freedom, can invest much of their wealth into the public sector, rather than within their family, to address inequalities in society created by inherited capital. In France, however, this kind of decision would be prohibited under its succession regime of forced heirship articulated in article 913 of the French Civil Code. Zuckerberg and Chan would need to pass down a larger share of their fortune to their daughter and thus miss the opportunity to create greater good.

U.S. testamentary freedom produces better results in society, as this freedom allows decedents to benefit the people in their lives with testamentary gifts while avoiding some of the disadvantages of forcefully inherited wealth. This article first will examine American inheritance laws, which allow for freedom of testation, even up to the point of disinheritance, and then compare them to French inheritance law, which practices forced heirship to protect heirs, a practice that also may create economic and societal issues. This article also will discuss how inherited wealth creates social inequalities and economic disparities in both the United States and France and explore the U.S. inheritance laws that provide an opportunity to remedy these issues.

American Testamentary Freedom vs. French Forced Heirship

Before comparing the inheritance law between the two countries, it is important to lay out the status quo of the American and French succession regimes within their respective legal systems. The American legal system follows the common law tradition, whereas the French legal system follows the civil legal tradition. It is also important to note that probate law in the United States differs from state to state, while the French regime follows the Civil Code.

In the United States, people believe in and enforce testamentary freedom—essentially, the absolute right of a person to dispose of his property however he pleases at death. Individual states have their respective probate codes, but even the United States Supreme Court, in Hodel v. Irving, 481 U.S. 704, 716 (1987), has held that the ability to transmit property at death is a constitutionally protected right that includes the right to exclude. Under the Restatement (Third) of Property, donative transfers follow the donor’s intention unless prohibited by law and descendants are not protected from intentional disinheritance. Although many state statutes prevent the surviving spouse from being completely disinherited by containing provisions that require a minimum share of the estate to be left to the surviving spouse, these statutes do not extend to children. Consequently, even minor or disabled children can be completely disinherited for any or no reason. This rule is subject to limitations, however. For example, if a testator’s will merely fails to include the child rather than expressly disinheriting the child, the child may still have a claim on the estate. See Uniform Probate Code § 2-302 (awarding “pretermitted” or overlooked children portions of decedent’s estate under certain conditions). Only one jurisdiction, Louisiana, a state that follows the civil legal system, provides direct protection to children intentionally disinherited by a parent. Even so, Louisiana limits the class of children eligible for protection against disinheritance. Only children under age 23 or who have mental disabilities are forced heirs. La. Civ. Code art. 1493(A).

The French place high importance on the stability of families, and their laws reflect those views. Unlike common law jurisdictions such as the United States, where testator intent is the primary focus and will be followed unless it goes against public policy, in France, inheritance law imposes strict limitations on a decedent’s freedom of testation through the forced heirship regime, generally a characteristic of civil law countries. Historically, the Loi de Nivôse an II was a law that imposed strict equality among heirs. Today, inheritance laws still follow the same tradition in which heirs should be designated by law, but the Civil Code gives testators more discretion than the Loi de Nivôse an II by decreasing the réserve héréditaire. This means that children are entitled to receive between one-half to three-quarters of the deceased parent’s property, depending on the number of children. Code civil (C. civ.) art 913 (Fr.). The réserve héréditaire is the entrenched right of inheritance, which cannot be avoided by making lifetime gifts, as this rule extends to property transferred by the decedent throughout her lifetime. Id. arts. 920–924. As a result, decedents are limited in their ability to convey property away from the family unit. Taking all this information into consideration, the following will focus on why U.S disinheritance laws are more beneficial to the overall society in comparison to French inheritance laws.

Effects of Inheritance on Family

Although inheritance is important to beneficiaries such as minor or disabled children, there are many situations in which heirs, other than biological children, are deemed more deserving of the decedent’s estate. For example, under forced heirship, distant heirs who have had no contact with the decedent for years would inherit the decedent’s estate to the exclusion of a child who came into the decedent’s home, was taken care of as the decedent’s own, and took care of the decedent like a parent. In such a case, there is no good reason for denying inheritance rights to a child who functions as one in many or all respects. Testamentary freedom allows a decedent to bequeath his estate to the beneficiaries of his choice, rather than forcing the decedent to bequeath his estate to blood-related relatives.

Modern times have seen an increase in the number of the “nontraditional” families. Many modern individuals support the idea that marriage laws should allow any two adults to marry or that adults may reside in a household as members of an unmarried couple, and these premises raise questions for child beneficiaries inheriting from these nontraditional families. But testamentary freedom allows a simple way to bypass these issues because a decedent can bequeath his estate to whomever he chooses, rather than being restricted to bequeathing all or a portion of his estate to natural or biological relatives.

Arguments certainly exist, however, that bring to light the disadvantages of disinheritance laws within the United States. Some forced share statutes protect spouses, but this same protection does not necessarily trickle down to the children. Disinheritance of minor children does occur and, in fact, occurs to a large degree. Such disinheritance presents a problem: a parent who disinherits a minor child may leave the child unable to provide for herself, causing her to depend solely on the surviving parent, if one exists, for support. If the surviving parent is not a biological parent of the decedent’s children, or if the testator is not bound by judicial decree or contractual agreement to provide for his child after death, the minor child may receive nothing from his estate. Because a testator is free to disinherit his children, minor children often are placed in a position of complete scarcity.

It sounds cruel and unfair, but in reality the power to disinherit is more limited than the law suggests. Although U.S. doctrines follow absolute testamentary freedom, it is limited through doctrines protecting against undue influence, fraud, and duress. When a testator disinherits his heirs, disgruntled heirs likely will contest the will. Therefore, will contests involving the testator’s mental capacity, duress, fraud, or undue influence allow courts to undo testamentary dispositions that fail to provide for the testator’s children.

As previously mentioned, U.S. inheritance laws do include several statutes to protect surviving spouses from complete disinheritance as a means to combat disenfranchisement, but these statutes should be revised to further allow decedents to distribute their estates as they wish. The conventional forced share statute is one such statute; it requires the surviving spouse to receive a fractional portion of the value of the testator’s probate estate irrespective of the size of the estate, the survivor’s need, her earning capacity or independent sources of wealth, or her conduct during the marriage. See, e.g., Ala. Code § 43-8-70; Me. Rev. Stat. Ann. tit. 18-A, § 2-201; Okla. Stat. Ann. tit. 84, § 44. Even this small inclusion of protection of heirship, however, is contested in the United States. Ralph Brashier lays out why these protective statutes should be eliminated in favor of laws embracing full disinheritance. Ralph C. Brashier, Inheritance Law and the Evolving Family (2004), at 23–27. He argues that couples enter into marriage as equals under the law, and the elective share belittles this equality between husband and wife. The marriage contract is an agreement between two individuals, each of whom is fully capable of providing for and protecting himself or herself before and after exchanging marital vows. Even in its gender-neutral form, the forced share discourages equality between the spouses during the marriage. If legislatures want to provide truly gender-neutral treatment for spouses, then legislators must exchange the forced share with community property principles or, alternatively, abolish the forced share and let the spouses protect themselves.

Effects of Inheritance on Society

Outside of the family dynamic, inherited wealth can present larger social and economic issues. As Bill Gates has observed, inherited wealth can cause an excessive concentration of wealth, which has the tendency to snowball, such that the rich get richer and the poor get poorer. In other words, inherited wealth perpetuates inequality in society by giving certain individuals a head start in various aspects of their lives while systematically oppressing the upward mobility of those who are not as fortunate. Children coming from affluent families have the opportunity through “intergenerational transmission of advantage,” a phenomenon that explains how wealthier children are able to gain an advantage earlier in life and consequently are able to pull further ahead at a faster pace. Chuck Collins, The Wealthy Kids Are All Right, Am. Prospect (May 28, 2013), available at http://prospect.org/article/wealthy-kids-are-all-right. As a result, countries such as France, which has forced heirship and inheritance laws that require parents to transfer a large portion of their wealth to their children, only preserve such kinds of inequalities.

U.S. testamentary freedom provides an avenue to fix many of the problems of social inequality that come with inherited wealth. Wealth is created when returns on capital exceed the rate of growth of the economy, and inherited wealth can magnify the returns on capital. Inherited wealth can contribute to inequality, but it also can deliver value to society when wealth is placed back into the public interest. Back in the public sector, wealth actually can begin to level the playing field. Economic and social disparities can be alleviated when wealthy decedents divert their wealth into social investments that give low-income households more opportunities for those individuals to better access the tools necessary to climb up the economic ladder. Several examples exist of high net worth individuals promising to distribute their wealth into the public sector. The Giving Pledge web site lists many of these individuals, who offer more than half of their wealth to philanthropic causes that benefit the public sector. In the United States, disinheritance laws allow high net worth individuals like Mark Zuckerberg and Priscilla Chan and Bill and Melinda Gates to invest in the public sector rather than being forced to transfer the majority of their wealth to their children, effectively providing relief for the potential disadvantages of inherited wealth. With France’s forced heirship and inheritance laws in place, Zuckerberg and Chan and the Gateses would not have been able to start their philanthropic careers nor be able to attempt to improve the inequalities present in U.S. society. Although there are no mandatory provisions for individuals to allocate their estates to the public interest sector rather than their children, the mere freedom for a decedent to choose who may inherit his estate already creates a positive effect on social equality. The French restrictions on testamentary freedom have resulted in low rates of testamentary charitable bequests in comparison to healthier American nonprofits, which receive higher rates of testamentary charitable bequests facilitated by a larger degree of testamentary freedom.


The inheritance laws of the United States and France have fundamental differences because of differing core outlooks. In the United States, our freedoms are of utmost importance, and unsurprisingly this translates into testamentary freedom as well. By contrast, the French inheritance laws grant forced heirship rights to the children of the decedent, protecting them from disenfranchisement regardless of testate or intestate succession. The French place filiation in a place of greater importance than affiliation, which in some cases will award inheritance to estranged children and disenfranchise heirs who may be closer to the decedent. For this reason, testamentary freedom in the United States gives an advantage over forced heirship in that the testator has the power to distribute his property at his own discretion without the restrictions set by the French réserve héréditaire.

As our global community expands and evolves, extensive social and economic changes must be considered in the law-making process. First, there is a noted growth in nontraditional families, and the importance of the testamentary freedom in America is highlighted in these instances. Some nontraditional families especially need the ability to govern how their estate is allocated. Second, the resultant issues of social inequality because of wealth inheritance cannot be ignored. Through testamentary freedom, Americans are given the option to give their assets in death for the betterment of society, again, without the restrictions imposed by réserve héréditaire. Although the strongest argument against the absolute testamentary freedom of the United States is that minor children may be disinherited, doctrines are available to protect against undue influence, fraud, and duress, and the will of the decedent can be contested. Familial values and tradition shape the forced heirship inheritance regime, but the modern world calls for each testator to have the freedom and opportunity to leave a legacy outside of the family and in the greater society.

Elaine Lam

Elaine Lam is a third-year law student at Drexel University in Philadelphia, Pennsylvania.