What is the inheritance reserve?

In the case of an inheritance, the law makes it possible to protect descendants. They cannot be totally disinherited. On the contrary, they are entitled to a share of the estate: the "reserve héréditaire". You may come across this term regularly during your research if you wish to prepare your estate. In this article on the subject, we'll define what the hereditary reserve is, who it concerns and how to calculate it. This will enable you to prepare your succession with greater peace of mind.

Definition of the hereditary reserve

In France, heirs are preserved within the framework of succession. A share of the estate is legally reserved for certain heirs. These heirs are known as heirs reservataires, and their share of the estate is known as the réserve héréditaire.

The principle is to prevent a person from totally disinheriting his or her descendants. In this way, even if the heirs and the person formalizing the last will and testament are on bad terms, a share of the estate is necessarily allocated to those heirs.

How does the hereditary reserve work? 

To fully understand the principle of hereditary reserve, it's important to define the notion of patrimony. There are two parts to the estate: 

• The hereditary reserve: As we have seen, this part is intended for the heirs. Consequently, the ascendant cannot dispose of it as he wishes. The latter is legally obliged to respect certain proportions of this hereditary reserve.
• The available portion: This is the second part of the estate. This is the portion that the donor is free to dispose of. This means he or she can make a gift to a third party.

Who are the reserved heirs? 

There are two types of persons in the category of what are known as heirs reservataires: 

• Descendants (children, grandchildren and their descendants) ;
• The surviving spouse.

How to estimate the value of the hereditary reserve? 

Once this foundation has been laid, it's time to consider how precisely to calculate the inheritance reserve and the available portion. This calculation depends on several criteria, including the presence or absence of descendants, and their number. The presence or absence of a surviving spouse is also a factor.

The principle of hereditary reserve

This is the situation where the person making the last will and testament wishes to bequeath his or her estate to his or her descendants.

Presence of descendants

If there are descendants at the time of death, the calculation depends on their number. 

• 1 child : The hereditary reserve represents half of the estate; 
• 2 children: The reserve is ⅔ of the deceased's assets;
• 3 children or more: This time, the reserve amounts to ¾ of the assets.

Depending on each situation, the remaining portion thus represents the available share. As mentioned above, the ascendant can dispose of it freely. It should be added that if, at the time of succession, the children are deceased, it is their children who inherit the reserved portion. The latter then come "in representation of their parents".

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No descendants

If there are no children at the time of inheritance, the hereditary reserve is ¼ of the estate in favor of the surviving spouse.

The hereditary reserve exception

In some cases, a person may wish to bequeath his or her property to a surviving spouse. In this case, the calculation is different.

Presence of descendants

If the deceased has chosen to pass on his assets to the surviving spouse while he has descendants, various options exist. The surviving spouse can obtain : 

• The entire available share ; 
• Usufruct of the entire estate; 
• Usufruct on ¾ of the estate and ¼ in full ownership.

The descendants then share the remaining share of the estate.

No descendants 

This is the simplest situation. If there are no descendants, the surviving spouse naturally receives the entire estate.

Renunciation

It is also possible for an heir to renounce his right. In this case, he/she decides not to take advantage of the share to which he/she is entitled under the legislation on the reserved portion of an estate. 

To do so, three conditions must be met: 

• The reserved heir must be of age;
• His decision to renounce must be authenticated in the presence of two notaries;
• The notarial deed must mention the share concerned by this renunciation. 

Protection of the hereditary reserve: the action in reduction 

Unfortunately, inheritance sometimes leads to conflict. Indeed, it is possible that the heirs concerned by the hereditary reserve feel they have been wronged. In such cases, they can of course protect their rights. To do so, they can bring what is known as an action en réduction.

The time limit for taking action is 5 years from the date on which the succession was opened, or 2 years from the date on which the heirs became aware of the infringement of their reserve.

An action en réduction will reconstitute the deceased's estate on the day of his death. In this way, it becomes possible to make a new calculation and define the share due to each living heir according to their rights.

Plan your succession in advance

Although legislative principles can sometimes seem nebulous, it's essential to think about your succession while you're still alive, and to anticipate the transmission of your wealth and digital assets. This is the best way to safeguard the interests of your descendants and ensure that your wishes are carried out.

Preparing the succession involves two essential elements: 

• Physical assets: real estate, life insurance, bank accounts, etc.
• Digital property and assets : your social network accounts, access to your electronic devices or even your cryptocurrency wallets.

In all cases, it is essential to take stock of your assets and decide on a case-by-case basis what you wish to do with them. Which heir or third party do you think should benefit? Questions like these need to be carefully considered.

In addition, you need to be accompanied by legal experts, such as notaries, to ensure that the procedure and your wishes comply with current law. When it comes to digital property and assets, SOLAL TECH can centralize all your digital inheritance needs withina high-performance, secure platform.

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