Limitation periods in inheritance law
“No one can be forced to remain in a joint possession”.
This is the principle that governs all situations of joint possession and, even more so, joint possession created by inheritance claims.
Thus, the principle remains that the partition of the inheritance may be requested or brought about at any time, without any limitation period being imposed on the presumptive owners.
However, this imprescriptibility necessarily creates legal insecurity at various levels, which is why, despite the principle, a certain number of “islands of prescriptibility” remain in Inheritance law.
I- Limitations linked to tax audits
These are the limitation periods concerning the tax administration for the exercise of its right of recovery on a limited number of subjects:
- Registration fees
- Land registration taxes
- Stamp duties
- Taxes, fees and other similar charges
This right of recovery is necessarily based on the declaration of inheritance and therefore only on the goods and/or liquid assets declared therein.
Two limitation periods are therefore imposed on the tax authorities.
The so-called “shortened” limitation period
Which is 3 years and runs from the production of the declaration of inheritance that the Notary must transmit within 6 months of the opening of the inheritance.
Article L 180 of the Book of Tax Procedures.
The so-called “extended” prescription
This is extended to 6 years for the exercise of the right of recovery for which a shorter or longer limitation period is provided from the date of death, the triggering event of the tax.
Article L 186 of the Book of Tax Procedures
II- The limitation period related to the option of succession
The time limit for acceptance or renunciation of the inheritance is 4 months from the day of the opening of the inheritance, i.e. the death of the deceased.
This period is not subject to any penalty for the successors, even if they have been summoned to opt, since this option is valid for another 10 years.
After this period, the heir is deemed to have renounced.
However, it is not in the interest of any of the parties involved in the inheritance, and even less in the interest of the tax authorities, for an inheritance to remain vacant for lack of an option.
Therefore, a certain number of corrective measures are provided for, in the event that the heir has not made an option within the time limits and has not been the subject of any option summons if he:
Has not acted as an heir (for example, if he has not signed a deed of notoriety)
Is not deemed to be an heir accepting the inheritance outright, i.e. in the following cases
- Receiving heir
- Heir requesting additional time to file an inventory
- An heir in bad faith who has forgotten to declare items in the inventory or to declare creditors and who finds himself deprived of his right to opt for the net assets.
Articles 771, 778, 780, 790 and 800 of the Civil Code
This time limit comes from the reform of Inheritance and donations of June 23, 2006, before this law, the time limit was 30 years.
In the absence of a transitional law concerning inheritances, the Court of Cassation decided in 2020 that inheritances opened before January 1, 2017 remain subject to the thirty-year statute of limitations, but only with respect to the option period.
Cass. 1e civ. 12-2-2020 n° 19-11.668 F-D
III- Prescription periods related to inheritance disputes
Still with a view to legal certainty and to limit the situations of blocking or reopening an inheritance that would have already been settled several years ago, actions aimed at contesting an inheritance or its ancillary acts remain subject to the ordinary law prescription of 5 years from the opening of the inheritance.
These actions are the following:
The action in reduction
This is an action brought by a reserved heir against a donee or a legatee, whether or not they have a right to the property, whose liberality affects their reserve.
Action to contest a will
Wills can be in authentic or holographic form, in the latter case, it is not certain that the heirs are actually aware of them when the inheritance is opened.
This is why there are two starting points for the five-year prescription period for contesting a will.
In principle, on the day of the opening of the inheritance and, by exception, in the case of late discovery of the will, on the day when the heir became aware of it.
Action for concealment of inheritance
This is an action against an heir who has voluntarily and fraudulently misappropriated property in order to appropriate it or voluntarily conceal its existence from the other heirs.
Like the action to contest a will, the action for concealment of inheritance has two starting points for prescription: on the day of death or on the day the concealment is discovered.
The particular case of the action to contest a partition
This action benefits from a double prescription :
- The five-year statute of limitations in principle, but from the date of partition
- A limitation period restricted to 2 years from the date of the partition in the context of an action to supplement the share for a lesion of more than a quarter
Before the reform, the prescription period was thirty years, it is necessary here to distinguish according to whether the inheritance was opened before or after 17 June 2008.
The prescription remains thirty years for the inheritances opened before June 17, 2008 and is 5 years for those opened after.
However, as the law is directly applicable, the five-year limitation period will apply to Inheritances that are not time-barred as of June 17, 2008, but only with respect to the handling of inheritances.
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AGN AVOCATS – Inheritance Department
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