Testamentary freedom is not universal. In civil law jurisdictions, the law reserves a mandatory portion of the estate for certain protected heirs regardless of the will. This is the single most consistently underexplained limitation in cross-border estate planning.
France
Reserve hereditaire: 1 child = 1/2; 2 = 2/3; 3+ = 3/4
Only the remaining portion (quotite disponible) is freely distributable. Children who are cut out of a French succession can claim their reserved share from French-situs assets under art.913 (as amended 2021) — even where a foreign succession law was elected under the EU Succession Regulation. French real estate is always subject to French law regardless of any election.
Spain
Legitima: 2/3 reserved on the mainland; significant regional variation
Mainland Spain (Codigo Civil): 2/3 reserved (1/3 estricta, 1/3 mejora), 1/3 freely distributable. But: Basque Country (near-total testamentary freedom), Catalonia (1/4 reserved), Navarre (minimal forced heirship). The applicable regime depends on the deceased’s vecindad civil — not their residence at death.
Italy
Quota legittima: 1 child = 1/2; 2+ = 2/3; spouse alone = 1/2
Plus: azione di riduzione — forced heirs can challenge lifetime gifts made up to 10 years before death. Italian forced heirship reaches back into the deceased’s donative history in a way that surprises families who assumed gifts had been cleanly made.
Germany
Pflichtteil: half the intestate share, payable in cash
Enforceable by German-domiciled heirs against any estate regardless of where the deceased lived. Payable in cash — which means the estate may need to liquidate assets to satisfy a Pflichtteil claim. Germany has no equivalent of the French lex situs carve-out; the Pflichtteil is a claim against the heir, not a property right in specific assets.
The lex situs rule — what elections cannot fix
The EU Succession Regulation allows EU nationals to elect their nationality’s succession law in their will. A British national living in France can elect UK law — removing the French reserve hereditaire for movable assets held outside France. But:
Real estate always follows the succession law of the country where it is located. A French property follows French law. A Spanish property follows Spanish law. An Italian property follows Italian law. Whatever your will says. Whatever succession law you elected. The EU Succession Regulation art.35 (public policy exception) and art.913 CGI (as amended 2021) both create additional constraints on the election.
The election under the EU Succession Regulation is essential for non-EU nationals living in the EU — but it does not solve the real estate problem in any civil law jurisdiction. Every property in France, Spain, Italy, or Germany requires separate analysis under the law of that country.
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