Early Nineteenth Century French Inheritance Law

Because many of us have to deal with the death of a character, some knowledge of inheritance law is necessary. Any state where the law is based on English Common Law has complete freedom for a testator to dispose of his goods. This is not the case under the Code Napoléon, which makes it difficult for most English-speaking writers to understand.

Property brought into the marriage by the woman was considered the property of the man, to be disposed of as he wished. Thus, in theory, if a woman brought a very large dowry to the marriage, and the man died the next day, it would pass not back to her but to his relatives (parents or collateral heirs). Among the propertied classes, therefore, marriage contracts were in continual use. Contracts generally stipulated that upon the husband’s death, the dowry property or an equivalent sum of money would devolve to the wife. Sometimes, the dowry was held in trust, so that the husband could not draw directly from it himself, and this property could be inherited by the children upon the woman’s death. The woman was also often granted life use of the family home, even if its ownership passed to the children.

Most importantly for any inheritance, a will is unnecessary. One cannot be disowned or disinherited by his/her family. All legitimate children must inherit equal portions of the estate, and recognised illegitimate children must inherit as well: half of what his/her share would have been had he/she been legitimate if there are legitimate children, 75% what a legitimate child’s share would have been if there are collateral heirs, or the full reserved portion of estate if there are no other heirs. A child, once legally recognised, cannot be unrecognised, and all children born within a marriage are considered legally recognised if no charges of adultery are brought by the husband: if a woman was made pregnant by her lover, but her husband asserted his fatherhood on the birth certificate and only years later found out he was not the biological father, he had no legal recourse since he had recognised the child and not brought charges of adultery against his wife at the time of her pregnancy and the birth. Thus, legally illegitimate children were only the result of successful adultery prosecutions at the time of birth or of the relationships of unmarried women.

The order of precedence for inheritance is as follows:
- children (or, if they are deceased, their children)
- parents and privileged collateral heirs (siblings or, if deceased, nephews and nieces)
- grandparents
- surviving spouse
- other collateral heirs (uncles, aunts, cousins etc).

Most importantly, all children must receive an equal portion of the estate. Parents may receive up to one quarter of the estate, each, unless there are no other heirs, then they receive the whole estate. If there are no children and no spouse, the parents would receive half the estate and the rest would be divided among the siblings of the deceased. Grandparents inherit if the parents are deceased and there are no siblings. The surviving spouse takes a share only if there is no other family to assist her (a widower would have his own estate and thus would not be in need of a share of his wife’s property, thus the affected person was invariably a woman). Only if there are no closer relatives do other family members take a share, all in equal proportion.

The “widow’s portion” of one quarter of the estate was codified only in 1891. It has no bearing on our time period.

Adult, unmarried women have full rights under the law - they will inherit in the same manner as men. If a girl child loses her father before she is adult or married, she will still inherit but the property will pass to her husband when she does marry.

Most property at this time was still real estate. To avoid the division of a property (sometimes an impossible task, should the property be a house, for example), one inheritor may be given life use of that property but all proceeds must be divided between the other inheritors. If the person with the life interest wishes to sell the property, he/she can only do so with the consent of all other inheritors - think of a piece of land as an investment, and all the inheritors as shareholders. There must be unanimous consent among them to sell the property and the proceeds must be divided among them. For purposes of inheritance, shares in the Banque de France were considered real estate rather than movable goods.

In 1819, the droit d’aubaine was abolished. This meant that foreigners residing in France were subject to the same laws as native-born Frenchmen. This is a step forward, however, because previously, all property belonging to a foreigner returned to the state at his death. After 1819, a foreigner’s family could inherit his estate at his death.

Entailments, a common form of estate-protection in England, were not allowed under the Code Napoléon. In 1808, this stricture was modified to allow certain members of the nobility to entail the title and a certain amount of property on the eldest son. The rest of the estate had to be divided among the remaining children, however. This law applied, in our time period, only to those nobles created by Napoléon or Louis XVIII.

Most measures to protect against division of the estate proved ineffective - it is still impossible to choose how to divide properties among children since all must receive an equal share of all properties. However, inter vivos transfers always remained perfectly legal. An inter vivos transfer is a transfer of property “between the living”. One could single out favoured children by making gifts of various pieces of property or amounts of money during one’s lifetime. In the latter half of the century (it seems to have taken a couple generations to figure out what would and would not be allowed, and various small changes were made in the mid-nineteenth century to the inheritance laws), businesses were largely protected by registered partnerships, a milder form of incorporation that still gave the business legal standing on its own.

A small amount of property could be disposed of as the testator wished. The résèrve légale must be left intact, regardless of inter vivos gifts. This proportion is determined by the number of children. If one child, then half the estate must devolve to that child; if two children, two thirds of the estate so that each inherits one third; if three or more children, then three quarters of the estate must be reserved for inheritance by the children. The remainder, the quotit disponible, may be left to whomever the testator wishes, be it spouse, friend, or charity. All are treated equally. This portion may also be given over to preference one child over another. If there are no children, then the other members of the family will qualify to inherit the résèrve légale.

One must write a will if one wishes to dispose of the quotit disponible in a manner other than division amongst heirs. A will must be signed by witnesses, but it does not have to be notarised in order to be valid. A notarised will, however, is a stronger legal bond if there is a fear of contestation.

French property law still works in this manner. There are various other ways to get around it, but it is a major cause of declining birthrate among the propertied classes in the 19th century. The generation about which we write is really the first generation to be strongly affected. Their parents were born just prior to the revolution, and the first inheritance laws to force equality of inheritance came in 1790. That generation was the first who could plan how to deal with the law, since their parents were presented with it after their childbearing years had commenced. Our generation will witness the division of estates created by the death of grandparents and perhaps even by the deaths of parents. Since implications were still not entirely known at the time the parents were growing up, our generation is likely the first in their families to be impacted at an impressionable age and to be encouraged to plan their families based on inheritance law. They are more likely to marry later than their parents and worry more about illegitimate children.

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