Discriminatory inheritance laws violate rights of illegitimate children

Fabris v France [2013] ECHR, Application no.16574/08


The European Court of Human Rights recently handed down a decision which identified a violation of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms where an individual “born of adultery” was denied the right – due to the operation of legislation in France – to inherit an equal share of his mother's estate.


At the time of the applicant's conception, the applicant's mother was married and had two children born of that marriage. That marriage was ended by decree of “judicial separation” in 1967. By 1970, a deed established how their property would be divided between their two legitimate children. The Deed contained a declaration that the two beneficiaries were their only offspring. In 1983, the applicant was declared "the illegitimate child" of the applicant's Mother and in 1984 the applicant expressed an intention to challenge the Deed.

In 1994 the applicant's mother died. The notary administering the estate informed the applicant that under the applicable law, as a child “born of adultery” he was only entitled to half the share he would receive as a legitimate child. The applicant and his half-brother and half-sister could not reach agreement. In 1998, the applicant filed a claim to obtain an equal share of his mother's estate.

Before a decision was handed down, France passed amendments to legislation from 1972 to grant children 'born of adultery' identical inheritance rights to those of legitimate children. Those amendments were applicable wherever the succession period (right to make a claim) was open as at 4 December 2001 or where there had been no division of the estate – in essence it was designed not to have retrospective effect.

The applicant succeeded at first instance at the tribunal de grande instance which found that articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been violated. On appeal, the Court of Appeal found for the recognised heirs on the basis that the 1972 legislation did not conflict with the Convention nor did it entitle the applicant to make a claim. The applicant appealed to the Court of Cassation, which similarly dismissed the applicant's case.


The European Court of Human Rights considered the relationship between the following rights and 1972 and 2001 versions of the inheritance legislation:

Article 1 of Protocol No. 1, which provides that:

"Every natural or legal person is entitled to peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The proceeding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

Article 14, which provides that the “enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as…birth…"

There was considerable review of the operation and interaction of the 1972 and 2001 versions of the legislation as well as consideration of the value of legal certainty which may be undermined by seeking the retrospective effect of the 2001 amendments. The Court reviewed the nature of inheritance laws across Europe and in some instances drew attention to their discriminatory impact. It noted that as early as 1979, the Court had held that restrictions on an individual's inheritance rights on grounds of birth were incompatible with the Convention.

The Court found in favour of the applicant and stated that there had been a violation of article 14 of the Convention taken in conjunction with article 1 of Protocol No.1. In essence, whilst the Court recognised that France's efforts to ensure the stability of completed inheritance arrangements constituted a legitimate aim capable of justifying the difference in treatment, it was not proportionate to that aim. It held that "protecting the legitimate expectation of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and children born within marriage." On that basis there was no objective and reasonable justification for the difference in treatment regarding the applicant, resulting in his ability to inherit a reserved portion of his mother's estate, by virtue of his status as a child "born of adultery".

The Court also highlighted that this is a significant issue which has largely been addressed by European countries which have established that a child's status for inheritance purposes is independent of the marital status of their parents. The anomalies created by legislative amendments should therefore be addressed in order to reflect a state's recognition of the importance of equal status for inheritance purposes.

The decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-116716

Richard Griffin is a lawyer at Lander & Rogers.