Concealment of an inheritance: a severely punished breach of the equality of the distribution
Some heirs (or future heirs) may be tempted to conceal some of the assets pertaining to an inheritance (future or currently open).
This practice, which is prohibited by law, is considered as concealment of inheritance.
Definition of concealment of inheritance
Concealment of inheritance is a fraud committed with the aim of breaking the equality of the distribution: it can consist in concealing or misappropriating goods or rights of the inheritance, or even in hiding the existence of a co-heir.
The perpetrator of the concealment is an heir: it may be any person entitled to receive a share in the inheritance through a universal title.
Delimitation of the subject matter of concealment
Concealment involves rights or property that are part of the inheritance.
There can only be concealment of a donation that can be reported or deducted.
Who can act and within what time limit?
Only the heirs and the creditors of the inheritance have an interest in and the right to bring an action for receiving stolen property.
Inheritance fraud is subject to a prescription period of 5 years from the date of the opening of the inheritance or from the date of death.
Attention: Claims for the prosecution of concealment of inheritance must be made in the course of an action for partition. However, this action is no longer possible when the parties have already put an end to the joint possession of the inheritance by an amicable partition.
How to prove the offence of concealment of inheritance?
To establish the offence of receiving stolen property from an heir, two elements must be present: a material element and an intentional element.
- The material element
The material element corresponds to the means used by the heir to misappropriate the effects of the inheritance. The texts do not give an exhaustive list: any fraud can be retained, regardless of the procedure used. The purpose must have been to break the equality in the sharing.
Some illustrations of facts characterizing a concealment of inheritance:
- Concealment of property, reportable or reducible donations;
- The destruction of a will;
- Falsification of documents in order to benefit an heir;
- Intentional omission of an heir.
- The intentional element
In order to establish the offence of concealment of inheritance, the aggrieved heir must prove the fraudulent intent of the accused heir. The latter must have had the will to undermine the equality of the partition.
- Fraudulent intent is not presumed.
- Its proof is not necessarily easy to bring:
- The mere existence of a disguised donation does not imply fraudulent intent. The disguised donation must have been made in order to distort the division of the inheritance.
- The fraudulent intent is not characterized by a child who did not spontaneously disclose the donation of securities received from his father.
- In the case of a life insurance contract: The non-disclosure of a life insurance contract does not constitute concealment of inheritance (However, some decisions admit the intentional nature of concealment simply because the beneficiary of the contracts whose premiums were exaggerated did not reveal their existence to the other heirs, despite their requests).
In any event, the fraudulent intent will be left to the sovereign appreciation of the trial judges.
Civil sanctions for concealment of inheritance
An heir who is found guilty of concealment of inheritance incurs several cumulative sanctions:
- Forfeiture of the option to inherit: The heir will then be deemed to accept the inheritance purely and simply. He will have to assume the inheritance debts, if necessary, out of his personal assets.
- If the concealment concerns a reportable or reducible donation, the report or reduction must be made and the heir will not be entitled to any share.
- He shall not be entitled to any share in the property or rights received, which shall be withdrawn from the assets of the succession and shared among the other heirs.
- The heir who is guilty of receiving stolen goods must return all the fruits and revenues derived from the stolen goods since the opening of the inheritance: he must also return the interest on the misappropriated sum, or the fruits of the stolen goods.
A few details:
- The heir who is the victim of fraud and who has only usufruct rights can only claim a sanction relating to the enjoyment of the misappropriated property.
- If the restitution in kind of the stolen property is impossible, the heir who has received it must bring back to the estate the current value of the said property.
The pronouncement of civil sanctions is completely complementary to other sanctions of a penal nature.
It is then necessary that the facts committed are constitutive of a penal offence: theft, abuse of weakness, etc.
If you yourself have concealed the assets of an inheritance, or omitted an heir, it may not be too late to escape the penalties.
In fact, the heir is allowed to repent. In order to do so, the receiving heir must return the property or sums misappropriated, or reveal the existence of the co-heir; but this must be done spontaneously and before any proceedings are taken.
If these conditions are respected, the legal qualification of “inheritance fraud” can no longer be retained.
Our lawyers are at your disposal to answer all your questions and advise you. Our meetings can be held in person or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Family Matters Department
09 72 34 24 72