The law allows children to waive, in advance, with an action in reduction (which seeks to reduce donations to encroach on their inheritance). For this, they must give their consent for a donation for a specific beneficiary (other child, grandchild, other family member, third). This “family pact” allows the donor to have more of their property freely, without fear of being questioned.
Definition of the family pact
The family pact is an act in which a child heir (which has a share of wealth reserved by law) waives in advance challenge a donation or bequest made in favor of the surviving spouse, child or another a third.
Case study #1: You want to pass a family business to one of your nephews, better able to manage it. You can ask your children to refrain from claiming their share of the property.
Case Study #2: One of your children is disabled and you want to ensure its future. You can ask your other children to give him the usufruct of your home.
Substantive conditions for the family pact
Who can give? Reserving any heir, that is to say, any person who is presumed heir in the direct line, a fraction of the estate will be reserved.
Examples: descendants, the surviving spouse.
The giving does not lose his status as heir. It will be able, indeed, to inherit the other goods of the giver or the testator in accordance with his rights.
To make this election, the forgoing shall not be:
- An emancipated minor;
- An adult under guardianship, unless assisted by his guardian;
- An adult under guardianship, unless authorized by the family council.
For the forgoing is committed, must the donor or testator has accepted the disclaimer.
The act of family must mention the giving up personal identity, that of the person who profits from the renunciation and this with what it gives up exactly.
Good to know: the waiver is a gratuitous act.
The family pact must take the form of a notarial deed by two notaries.
It must mention the future legal consequences of the waiver.
This act shall also designate the beneficiary or beneficiaries of the waiver. If there are multiple beneficiaries, the terms of the distribution of the waiver must be specified.
Thus, the renouncer can not ignore nor the cause of his resignation or the intentions of the donor or testator.
Scope and effect of the waiver of the family pact
Waiver may involve all or part of the share reserved by law renouncing in his capacity as heir, such as a child.
It may be limited to:
- A specific person who has a gift (will or donation);
- A gift on a specific property (eg family home).
The renunciation engages it giving up, but also his having right, that is to say the persons to which it transmitted a right, in succession, it is about his heirs.
Revocation of a family pact
The renouncer may reconsider his decision if:
- The settlor, before his death, fails to comply with the obligations which it has towards the waiver;
- The renouncer is in a state of need because of having renounced all or part of his rights;
- The beneficiary is guilty of a crime or offense against the person of giving up.
If the donation made (that is to say, the act by which a person gives a good or benefit to another without compensation) is not entirely consistent with what was expected when the waiver, the latter produces no effect.
Example: A child gives up by believing that his/her mother will thus receive a greater part of heritage. But the death of his father, he finds that this is not the case.