International Inheritance Matters Between France and Brazil: Conflict of Laws and Coordination of Legal Systems

Estates with ties to France and Brazil—such as those involving a deceased person with dual citizenship, assets located in both countries, and heirs residing on both sides of the Atlantic—raise complex issues of private international law.

In France, this matter has been governed since August 17, 2015, by Regulation (EU) No. 650/2012 of July 4, 2012, which is universally applicable (Art. 20) and subjects the entire estate, both movable and immovable, to the law of the deceased’s last habitual residence (Art. 21), unless there is a choice of law in favor of national law (Art. 22).

In Brazil, Article 10 of the Introductory Law to Brazilian Legal Standards (LINDB, Decree-Law No. 4,657/1942) also provides that the law of the decedent’s last domicile applies, regardless of the nature or location of the assets. This apparent convergence of connecting factors does not, however, preclude conflicts, particularly when the habitual residence under European law does not coincide with the domicile under Brazilian law.

In substance, both laws establish a reserved share, but under different terms. The French Civil Code guarantees children a reserved share of one-half, two-thirds, or three-quarters of the estate, depending on their number (Art. 913), with the surviving spouse entitled to a reserved share of one-quarter in the absence of descendants (Art. 914-1); Law No. 2021-1109 of August 24, 2021, further introduced in Article 913, paragraph 3, a right to a compensatory deduction from assets located in France when the applicable foreign law does not provide for any mechanism to protect children’s reserved share.

The Brazilian Civil Code (Law No. 10,406/2002), for its part, establishes the herdeiros necessários—descendants, ascendants, and the spouse (Art. 1,845)—to whom half of the estate’s assets, the legítima (Art. 1,846), is automatically reserved, with the succession commencing at the deceased’s last place of residence (Art. 1.785) and passing immediately to the heirs by operation of law (Art. 1.784).

Under Brazilian law, the protection of heirs is governed by mandatory unilateral rules. Article 5, XXXI, of the 1988 Federal Constitution, as incorporated into Article 10, § 1, of the LINDB, requires the application of the most favorable law—whether Brazilian or foreign—to the spouse and Brazilian children in the succession of foreign nationals’ assets located in Brazil.

Furthermore, Article 23, II, of the Brazilian Code of Civil Procedure (Law No. 13,105/2015) grants Brazilian courts exclusive jurisdiction over the inventory and distribution of assets located in Brazil, even if the decedent was a foreign national or domiciled outside Brazil. This results in a practical fragmentation of the estate: a French judge hearing a case under Regulation No. 650/2012 will not be able to have his or her decision take effect with respect to Brazilian real estate, and vice versa, which frequently leads to coordinated parallel proceedings.

There is no bilateral treaty specific to inheritance matters between France and Brazil, but several instruments facilitate the resolution of Franco-Brazilian cases.

The Convention on Judicial Cooperation in Civil, Commercial, Social, and Administrative Matters, signed in Paris on May 28, 1996 (enacted in Brazil by Decree No. 3,598 of September 12, 2000, and published in France by Decree No. 2000-940 of September 18, 2000), governs mutual legal assistance, the transmission of documents, the taking of evidence, and the recognition of judgments, including in matters of succession.

In addition, both countries are parties to the Hague Convention of October 5, 1961, abolishing the requirement for legalization (apostille, in effect in Brazil since 2016), which is invaluable for the circulation of civil status records and notarial deeds.

However, the Franco-Brazilian tax treaty of September 10, 1971, covers only income taxes: in the absence of a treaty on taxes on transfers of property by gift, double taxation in inheritance cases is mitigated only through domestic mechanisms, such as Article 784 A of the French General Tax Code.

Ultimately, settling a Franco-Brazilian estate requires a proactive strategy. The choice of national law provided for in Article 22 of Regulation No. 650/2012, the location of assets, the drafting of coordinated wills valid under both legal systems, and taking into account Brazil’s exclusive jurisdiction are the key elements of effective planning.

Otherwise, the heirs face the risk of duplicate proceedings, conflicts between the French reserved portion and the Brazilian legítima, and cumulative taxation. Fortunately, notarial and judicial practices in both countries are moving toward pragmatic coordination, with each jurisdiction limiting its authority to assets falling within its jurisdiction, in the spirit of cooperation enshrined in the 1996 convention.