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Change of applicable law
Agreements can save you a lot of headaches and can preserve a relationship sinking through the process of divorce.
A last will and testament is the main estate planning tool between France and the United States, because it is well known in both legal systems.
International wills are unique wills that are valid and enforceable in all states. However, as of today, there are too many uncertainties as to the recognition and application of such international wills, specially in a French American context, where only a few U.S. states (excluding New York) recognize them.
In order to guarantee the respect of your testamentary wishes, it is prudent to draft one or two separate wills, paying special care to the consistency of both deeds. Last wills and testaments are tools that enable parents to protect their minor children in the event of their death, and to organize a more peaceful transfer and distribution of assets.
Consider seeking advice and early consultation on specific concerns you may have – Many issues could be avoided if, before acting, people would ask expert advice from their attorneys.
Make sure what you are doing is proper, both legally and strategically – take an hour to ask an attorney for expert advice and save yourself and your family from unnecessary emotional and financial burdens.
Consulting fees vary according to each case.
Because you want to have some visibility on how your assets will be split in the event of divorce or death, in spite of any subsequent change in the law or change of residence. However, even though a ‘prenup’ is an enforceable contract in the State where you executed it, this may not be the case in other forums, and some courts may refuse to enforce the whole agreement or portions of it.
A contrat de mariage is a 3 to 4 pages deed, in which the spouses elect a matrimonial regime applicable to their assets (in general, separation of assets, community property, or else), by reference to the provisions of the French civil code referring to the specific regimes. No disclosure of assets is required, and future spouses do not need to be represented by private counsel; the notaire will advise them jointly on the different legal possibilities. In contrast, a prenuptial agreement is a contract, negotiated in length between the fiancés and their respective attorneys, after completing the disclosure of assets.
Under French law, a couple’s property rights depends upon their “régime matrimonial“. Such a concept does not exist under US law, where the ownership of one’s assets depends on several aspects, including the financing arrangements and a possible “right of survivorship.“
Under French law, absent a prenuptial agreement or contrat de mariage, spouses’ property rights will be determined by the law of the country where the spouses first settled their residence. For example, in the absence of a contract, two French spouses married in France but settled in the United States at the time of the marriage or immediately following the celebration, will be subject to the American law of the State of their first common residence.
To limit future complications and the legal uncertainties on the determination of how your assets are owned, which may change as one changes his/her place of residence, you want to have some visibility on how your assets will be split in the event of divorce or death, in spite of any subsequent change in the law or change of residence. We strongly advise that spouses enter into a nuptial agreement as soon as they are in an international context through either their nationalities, their residence or the location of their assets.
However, even though “prenups” are enforceable contracts in the State where you executed it, this may not be the case in other forums, and some courts may refuse to enforce the whole agreement or portions of it. The spouses need to check the validity of their agreement in both the French and U.S. forums, with local councils, so that any legal uncertainties, as who actually owns such or such asset, can be waived.
While in French law it is the “matrimonial regime” that governs the patrimonial relations of a couple, “matrimonial law” has no equivalent in American law. In the US, the ownership of goods in the absence of a marriage contract depends on various elements like acquisition mode, financing, any contractual clauses during the acquisition: “right of survivorship”,etc.
Under French law, the matrimonial regime, in the absence of a contract, depends on the place of installation of the first common residence after marriage.
It depends; you need to make sure there is a cautious drafting, and double check with lawyers of all states involved.
Most of the time, I tend to answer ‘yes’ to this question, since New York is one of the few states to enforce agreements. However, there are exceptions and it is advised to proceed with a mirror agreement to make sure the provisions of the French contrat de mariage will be applicable in New York.
Because it allows you to plan how your assets will be split in case of divorce or death, in spite of changes in the law or in the spouses’ residence. However, even though prenuptial agreements are enforceable contracts, be aware that certain jurisdictions will not enforce certain provisions, or even the agreement itself. Choose the right professional to help you foresee different scenarios.
In the United States, planning your estate often includes drafting and signing a “Health Care Proxy“, “Advance Medical Directive“, “Living Will“, “Natural Death Declaration“, etc. These documents provide clear instructions on your wishes in the event that you are in a state of long lasting coma or incurable disease (living will). You may also designate representatives who can express your wishes to doctors and hospital staff (health care proxy and Do-Not Resuscitate Order).
Estate planning helps clients achieve financial goals and may also help them keep control over their assets “beyond the grave”.
A well drafted estate plan may help reduce costs associated with distribution of asset upon death, such as the expenses related to probate and estate taxes. Additionally, clients can avoid intestate rules and make sure their testamentary wishes will control. Finally, it can also save significant time, in the event assets do not fall into the probate (which may last about 1 year average).
Testamentary freedom is the law within the limits of public order. The ‘public order’ definition will depend on geographic and cultural boundaries. In France it means ‘not disinheriting the children’ while in the US it means ‘not disinheriting the surviving spouse’. Within these ‘limits’, everyone is free to dispose of their assets as they see fit, and to deviate from rules of intestacy applicable outside a will.
The first and most important instrument is the Will.
Besides, one may create a ‘trust’, whether it is a property control trust – aiming for example at ensuring that the surviving spouse will be able to use the income generated by the trust while, upon hid/her death, the assets of the trust will go to the final beneficiaries (often the children) — or to ensure that the income will be used for the education of the children – or a special needs trust, etc.
In all of these cases, the trustor/ grantor retains control over the property and will generally defer the transfer of ownership of the property until a term occurs. During this period, another beneficiary may receive the income generated by the trust, and at the end of the term, the final beneficiaries will receive ownership of the property held in the trust.
The trust does not exist under French law, thus it may be perilous to create one if you have connections with French jurisdictions, either through the localisation of your assets or of your beneficiaries. Talking to a competent professional is advised.
When drafting trusts, Héléne Carvallo always collaborates with up-to-date specialized trust professionals to protect the best interest of her clients.
In the event of the death of both parents, a guardian will be appointed by the judge to manage the property of the minor child (guardian to the property) and/ or to raise and take care of the child (personal guardian or guardian to the person).
There are other methods of managing the assets of a minor child, including the designation of a custodian under the Uniform Transfer Minor Act.
Yes, it is advised to consider extra-patrimonial planning such as disposition of remains, as well as the event of incapacity. In that case, several tools exist, such as: Health care proxy, Living wills / Do-Not-Resuscitate orders, Designation of a standby guardian, HIPAA authorization, Power of Attorney, or guardianship proceedings.
As to its form, a French will is usually recognized in New York and vice-versa.
However, in terms of content, it will have to abide by the public policy of the State where it will be implemented. A New York judge may refuse to respect the terms of a French will disinheriting the surviving spouse, and a French notaire may force the issue of the heir to get their share, also known as réserve héréditaire or forced heirship.
In New York, a will must be in writing, dated and signed by the testator before two witnesses. In France, in contrast, one may sign an holographic will, i.e. a handwritten and testator-signed will. However, we advise people to talk to a French ‘notaire’ to check the formal validity of the will and proceed to its registration. Please note: A French notaire is a public official appointed by the Ministry of Justice, and is NOT the equivalent of a public notary in the United States.
In the United States, planning your estate often includes drafting and signing a “Health Care Proxy“, “Advance Medical Directive“, “Living Will“, “Medical Power“, “Natural Death Declaration“, etc. These documents provide clear instructions on your wishes in the event that you are in a state of long lasting coma or incurable disease (living will), and may also designate representatives who can express your wishes to doctors and hospital staff (health care proxy and Do-Not Resuscitate Order).
Although you may not want to think about your death, you need to make sure that your wishes will be respected when you pass away, and that your assets will go to whoever you choose. Also you may wish to protect your family from unnecessary confusion and stress during their most difficult time – your death or terminal illness.
Wills are usually wrongly associated with the rich and wealthy, but regardless of your finances, a Will is a legal instrument that ensures the respect of your wishes, not only regarding your personal belongings and assets, but also a business, or the designation of your minor children’s guardian if you pass before their adulthood.
Without a Will, the court will apply New York laws to the distribution of your assets, which may deviate from your personal wishes, and the judge will designate the guardian for your minor children or, absent a permanent solution, send them to foster care.
I usually advise that people review their estate planning every year, or each time there is a change in their personal situation (such as a change of residence, change of legal status in the U.S., acquisition of U.S. citizenship, divorce/remarriage, birth of children, etc.) or their financial situation (acquisition of assets in different States, perspective of bequests or inheritance, etc.)
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