Life insurance and domiciliation of the policyholder: dangerous links

By Olivier Roumélian, Member of the Paris Bar and Partner at Artésia.

Life insurance has long been at the heart of many legal and tax issues, which have given rise to a wealth of case law.

Following a ruling by the Cour de Cassation on 12 July 2023, life insurance has now been brought into the question of the domicile of French nationals who have decided to settle abroad in anticipation of their inheritance.

Olivier Roumélian shares with us the article he wrote for the Bulletin Juridique des Assurances (BJDA) and what it will mean for the insurance industry.

1. Portugal, the new Eldorado for wealthy retirees?

In this case, the Court of Cassation had to rule on the habitual residence of a French pensioner who had chosen to settle in Portugal with his second wife. Misery is certainly less painful in the sun, especially for someone who has taken out a life insurance policy with a Luxembourg insurer under the freedom to provide services, with a premium of almost six million euros.

Including those with dual nationality, the number of French nationals living in Portugal is estimated at over thirty thousand. The reasons why this destination appeals so much to the French have to do with the living environment, and even the search for civil and/or tax advantages.

In the case in point, the deceased had filed a will with a Portuguese notary in which he made his wife heir to his disposable portion and opted for Portuguese law to govern his estate.

It should be noted that the various tax benefits granted since 2009 are due to disappear in the near future, although the exemptions already granted will remain in force.

2. The concept of habitual residence

Claiming that the deceased had his habitual residence in France on the date of his death, his two daughters from a first marriage, represented by their mother acting in her capacity as guardian, sued the deceased’s widow for division of the estate before a French court. They also summoned the other beneficiaries of the life insurance policy. The Luxembourg insurer intervened voluntarily in the proceedings.

In this case, the Aix-en-Provence Court of Appeal ruled that, at the time of his death, the deceased had not established his habitual residence in Portugal on a stable and effective basis, the aim being to have Portuguese law apply to his estate. Consequently, a French court should have had jurisdiction to hear the said inheritance dispute.

In response to the appeals referred to it, in accordance with its case law, the Court of Cassation stated that under the terms of Article 4 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession, the courts of the Member State in which the deceased had his habitual residence at the time of his death have jurisdiction to rule on his entire estate.

3. A close and stable link with the State of residence

According to point 23 of this regulation, in view of the increasing mobility of citizens, in order to determine habitual residence, the authority responsible for the succession must make an overall assessment of the circumstances of the deceased’s life in the years preceding his death and at the time of his death, taking into account all the relevant facts, in particular the length and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence, the habitual residence thus determined having to reveal a close and stable link with the State concerned, taking into account the specific objectives of the Regulation.

After noting that the deceased had not moved to Portugal until 28 June 2016 and that, having died on 20 November 2016, admittedly of an unforeseeable heart attack, he had resided there for only four months and twenty-three days, the Aix-en-Provence Court of Appeal noted that :

– he had started learning Portuguese at a very late stage,
– at the time of his death, he was still registered on the French electoral roll
– and that, although he and his wife owned at least one property in Portugal, where they were officially domiciled, they still owned a house in France, and that examination of the numerous certificates produced revealed that the spouses’ families, most of their friends and the main beneficiaries of the life insurance policy were domiciled in France.

Repeated stays in Portugal for several years before settling permanently, the signing of a mandate to sell her French property well before she left France and the use of a joint account opened by the spouses with a Portuguese bank from the time they settled there were not considered sufficient to establish a closer link with Portugal.

The Cour de cassation ruled that the Cour d’appel had therefore deduced that, at the date of his death, the deceased had his habitual residence in France and, on these grounds alone, legally justified its decision.

To determine the habitual residence of an individual for the purposes of his or her succession, the Cour de cassation requires a comparative analysis of the deceased’s links with his or her new state of residence and France, as well as the conditions and reasons for his or her departure.
In order to limit or even avoid the risk of the choice made by the deceased being called into question, it is imperative that the deceased no longer has a residence in France (the sale of a property must be a prerequisite for departure) and applies to be registered on the consular electoral roll of his or her choice. In other words, a change of address cannot be improvised and cannot be summed up simply as the acquisition of a residence abroad, as no one is immune from a sudden and unexpected death.

4. Beware of liberal intent!

Finally, attention will be drawn to the last criterion retained by the Cour de cassation relating to the domicile of the beneficiaries of the life insurance policy taken out two years before the departure to Portugal. In this case, one of the particularities was that the policyholder had designated no fewer than eleven beneficiaries, including two French associations, who were not among his heirs with reserved rights.

As a reminder, by drafting the beneficiary clause, the subscriber of a life insurance policy stipulates that the policy will be taken over by another person. The right to designate, revoke or add a beneficiary is a personal right of the policyholder and cannot be delegated.

According to the judgment of 12 July 2023, the choice made by the policyholder in drafting his beneficiary clause contributed, along with other indications, to producing a negative post-mortem consequence, since in this case the main beneficiaries were domiciled in France.

We can only be surprised by this criterion insofar as, at the very least, the beneficiary designation was made about a year and a half before the policyholder changed residence and the domicile of the beneficiaries is completely beyond the control of the policyholder, and may even be unknown to him or her.

By authorising the opening of the succession under French law, the Cour de cassation is therefore enabling the female heirs to assert their rights under the deceased’s reserved portion of the estate. It also allows them to act on the concept of manifestly exaggerated premiums in order to partially challenge the allocation of death benefits in accordance with well-established case law.

In our opinion, this is the first time that it has been ruled that stipulations for third parties produce negative effects to the detriment of the beneficiaries.

It should also be noted that the judges did not dwell either on the fact that the insurer’s registered office was in Luxembourg, which could give the policyholder’s claim a non-French character, or on the fact that the Insurance Code states that the capital due by an insurer on the death of the insured to a specific beneficiary or to his heirs does not form part of the insured’s estate.

By law, death benefits are deemed never to have belonged to the policyholder. However, the choice made by the policyholder by designating beneficiaries domiciled in France is enforceable against his widow, who claimed that Portuguese inheritance law should apply.

In the same way, the judges did not wish, as they had been invited to do by the authors of the appeal, to rule on the concept of fraud against the law which may or may not have been committed by the deceased.

Pending confirmation of this case law, prospective tax exiles are advised to be extremely cautious in their choices, and to pay particular attention to the smallest details, such as the prior sale of their main residence in France, and their de-registration from electoral rolls and social security institutions.

In addition to having a stable address in the new country of residence and at least one bank account, learning the language of the host country will also be scrutinised (the choice of a French-speaking country would make it much easier to meet this criterion!), as will the choice of beneficiaries of a life insurance policy, a criterion that may be extended to persons designated as legatees in a will.