🇫🇷Family: Regime, Instrument, Event — Cluster Map

Family capital does not break where an unlucky jurisdiction was chosen; it breaks where the order was muddled. There are three layers: the matrimonial property regime, the instrument of ownership, and the event everything was built for. They work in one order only — first establish what the owner is entitled to dispose of, then choose the construction, and only then plan for divorce, death or the change of generation. Getting the order wrong costs more than any rate of tax, because it is put right not by a document but by litigation.

There are exactly two standard mistakes, and both are inversions. The first: a trust or a personal fund is filled out of the common matrimonial pot without anyone asking about the regime. The structure changes title, but it does not answer the question whose money went into it: assets transferred without the spouse's consent, or on the eve of a crisis, come back into the division through clawback mechanisms in almost every jurisdiction. The second: the marital agreement is drafted after the holding has been assembled and the shares distributed — at which point the agreement stops being a plan and becomes a reaction, and an asymmetric agreement signed against a background of debt or of pre-divorce correspondence is examined by the courts as a suspicious transaction.

This map breaks the family perimeter into four entrances — regime, instrument, event, governance — and sends the reader into the specialist studies rather than retelling them. It keeps one subject of its own: the seam between the marriage axis and the death axis, where an instrument sits that no page in the corpus covers — the contractual waiver of the reserved share.

Layer 1. The regime: what the owner is entitled to dispose of

Every couple has a property regime: if the spouses chose nothing, the conflict-of-laws rules chose for them. The world divides into three families — community of acquests (France, Spain, Italy, Latin America, Russia), separation of property (England, Austria) and equalisation of accrued gains (Germany, Switzerland, Scandinavia). The difference is not cosmetic: the German Zugewinnausgleich gives a monetary claim for half the difference between the accruals rather than a share in particular assets, and for a business owner that is a fundamentally different outcome from the French communauté.

The second storey is which law governs that regime. In the EU the conflicts layer is unified by Regulation 2016/1103, applicable from 29 January 2019 in 18 Member States: the spouses may choose the law of the habitual residence or of the nationality of either of them (Art. 22); absent a choice the cascade in Art. 26 operates, and the applicable law does not change on a move. Outside that perimeter the logic can run the other way: under Art. 55 of the Swiss Private International Law Act a transfer of domicile switches on the law of the new place of residence retroactively, as at the date of the marriage, unless the spouses have excluded retroactivity in writing.

• Matrimonial property regimes: what counts as common and under which law — the parent article of the layer: three families of regime, a table across eleven legal systems, the cascade of 2016/1103 and the mutability problem.
• Cross-border prenuptial agreements — the instrument that fixes the regime: the notarial contracts of the continent, the English prenup after Radmacher, the proviso in Art. 44 of the Russian Family Code and mirror agreements in the countries where the assets sit.
• Division of property in an international divorce — what happens to the regime at the point of crisis: five models of division, real property by its location, valuation and the buy-out of shares, pensions.

The Russian circuit adds a creditor layer that people remember too late. Under Art. 46 of the Russian Family Code a spouse must notify creditors of the conclusion, amendment or termination of a marital agreement, and on failure to do so is liable on his obligations irrespective of the content of the agreement: an unnotified creditor is entitled to ignore it. In bankruptcy the spouses' common property falls into the estate and is sold as a whole, the share being paid out of the proceeds (Plenum of the Supreme Court of the Russian Federation No. 48 of 25.12.2018), while the agreement itself is challenged as a suspicious transaction under Art. 61.2 of the Bankruptcy Law.

Layer 2. The instrument: title on one side, control on the other

The instrument is chosen after the regime and before the event. Its task is to separate title from benefit so that the construction outlives the owner and does not fall apart at the change of generation. The continental family more often takes a foundation, the common-law family a trust, the Russian one a personal fund; a separate fork is who manages it — a professional trustee or the family's own private trust company.

• How a trust works: settlor, trustee, beneficiary, protector — the basic construction and the line between genuine trustee discretion and a sham.
• Private foundations (Foundations / Stiftung) — the continental answer to the trust; country studies: the Liechtenstein foundation, the Panamanian private foundation, the Russian personal and inheritance fund.
• The private trust company (PTC) — the family becomes its own trustee and keeps control inside the perimeter.
• The family holding for succession and holding structures — the corporate layer, in which the dispute shifts from the assets to rights within the structure.
• Asset protection trusts and Jersey and Guernsey trusts — firewall provisions and their limit: they make enforcement of a foreign judgment in the trust's jurisdiction harder, but they do not stop a foreign court treating the assets as a resource.

The limit of the instrument is set by two English cases analysed in the study of the division of property: Charman v Charman [2007] EWCA Civ 503, where the assets of a discretionary trust entered the calculation as a financial resource under s. 25(2)(a) of the Matrimonial Causes Act 1973, and Prest v Petrodel Resources Ltd [2013] UKSC 34, where the properties held by the husband's companies went to the wife not through piercing the corporate veil but through a resulting trust. The design lesson is a single one: a structure is tested not for legality but against the question "and what if he asks?".

Layer 3. The event: death and divorce

The event is the last layer, and that is precisely why it is not planned first. On death the sequence has two steps: the pot is first divided under the matrimonial property regime and the survivor's share taken out, and only the remainder becomes the estate. The two governing laws are determined by different connecting factors and may perfectly well point to different legal systems — the German § 1371 BGB, which replaces equalisation of accruals with a flat additional quarter of the statutory share, is classified by a foreign court now as a rule of the property regime, now as a rule of succession, and the price of that classification runs to tens of per cent of the estate.

• Cross-border divorce jurisdiction — the entrance to the divorce axis: which court may hear the case, what the race to file produces, and when a foreign divorce is recognised elsewhere.
• Succession planning — the death axis in full: applicable law, the reserved share, taxes, documents, continuity and the standard scenarios.
• The law applicable to succession: Brussels IV — Regulation 650/2012 has applied since 17 August 2015 across the EU except Denmark and Ireland: by default the law of the last habitual residence, and in a will a professio juris in favour of the law of nationality.
• The reserved share and forced heirship — the reserve against freedom of testation: Art. 1149 of the Russian Civil Code, the French réserve (half with one child, two thirds with two, three quarters with three or more), the Spanish legítima, the German Pflichtteil at half the statutory share.
• The tax trail of the event: the inheritance tax map by country, US estate tax with an exemption of only $60,000 for a non-resident and a rate of up to 40%, trusts and UK IHT after the move to a residence-based test from 6 April 2025.
• Documents and assets: wills in several jurisdictions and probate, business succession, life insurance as a succession instrument, pension savings on relocation.

The seam: the contractual waiver of the reserved share

Exactly on the joint between the marriage axis and the death axis sits an instrument that is neither a marital agreement nor a will — the inter vivos contractual waiver of the reserved share. It solves a problem no single layer solves on its own: removing a future reserved heir's claim before the succession opens, and doing so by agreement rather than by unilateral disposition. Continental systems allow it to differing degrees; the Russian one does not allow it at all.

Germany: Pflichtteilsverzicht. Under § 2346 BGB the testator's relatives and spouse may by contract with him waive their statutory right of succession; the person waiving is excluded from intestate succession as though he had not survived the opening of the succession, and has no right to the reserved share. Paragraph 2 of the same provision offers the narrow version: "Der Verzicht kann auf das Pflichtteilsrecht beschränkt werden" — the waiver may be limited to the right to the reserved share alone, leaving intestate succession untouched. The form is rigid: § 2348 BGB requires notarial authentication, and § 2347 BGB requires the testator to conclude the contract in person, with no power to act through a representative (the waiving party may have one). The waiver is not irreversible: § 2351 BGB allows it to be cancelled by a counter-contract in the same form.

France: renonciation anticipée à l'action en réduction (RAAR). The mechanism was introduced by Law No. 2006-728 of 23 June 2006 reforming succession and gifts and lives in Arts. 929–930-5 of the French Civil Code. Under Art. 929 a presumptive reserved heir may waive in advance the action to reduce gifts in respect of a succession not yet opened; the waiver binds him only from the day it is accepted by the person whose heir he is called to be. The scope is flexible — the whole reserved share, part of it, or a specific asset — but the beneficiary must be identified by name and need not be an heir. The form under Art. 930 of the French Civil Code is exceptional: a separate special authentic deed received by two notaries, one of them appointed by the president of the chamber of notaries; each person waiving signs the deed separately, in the presence of the notaries alone. Under Art. 930-1 of the French Civil Code such a waiver is not a gratuitous disposition, and so is not taxed as a gift.

Russia: not removable by contract. The reserved share under Art. 1149 of the Russian Civil Code — not less than half of what would have fallen due on intestacy — cannot be given up in advance either by a marital agreement or by an inheritance contract. Art. 1140.1 of the Russian Civil Code says so directly: the terms of an inheritance contract operate only so far as they do not conflict with the rules on the reserved share, and when a reserved heir appears the contracting heir's obligations are reduced in proportion to what goes into the reserved share. The inheritance contract and the joint will of spouses were introduced by Federal Law No. 217-FZ of 19.07.2018, which amended both Art. 256 of Part One and Part Three of the Civil Code — but they take the reserved share as a given, not as the subject of a bargain.

The second risk at the seam is a conflicts risk. A waiver removes the reserved share given by the law applicable to the succession, and that law is not determined by where the contract was signed. Within the perimeter of Regulation 650/2012 the succession is governed by the deceased's last habitual residence or by a professio juris in favour of the law of nationality, whereas the matrimonial regime follows its own connecting factor under Regulation 2016/1103. A German Pflichtteilsverzicht signed by a family that then settles in France without a choice of law risks meeting a reserve other than the one waived; a French RAAR in favour of a named donee does not carry over to assets that fall under a different succession law. Hence the rule: the waiver is signed in one package with a choice of law on both axes — succession and matrimonial — and not as a free-standing document.

Layer 4. Governance: the office, the rules and the next generation

The fourth layer answers the question of who runs all of this once the regime has been fixed, the instrument assembled and the event planned. A family office is not a tax construction but an operating circuit: consolidated reporting, an investment strategy, a calendar of obligations across every family entity, and the preparation of the heirs. An in-house SFO is usually justified at capital of roughly US$100–250m and costs from US$1–2m a year; below that mark the same function is covered by the service model.

• The family office: SFO and MFO, jurisdictions, governance — the layer in full, including a comparison of four hubs and the licensing perimeter.
• The economics of a family office — budget, team and infrastructure; family office records — the evidential circuit; family cybersecurity and privacy — access management and incident response.
• The family charter — the rules executed by articles of association, shareholders' agreements and trust terms; those marrying into the family have a line of their own there, and that line is translated into a marital agreement with a choice of applicable law.
• The family investment policy statement (IPS) — the investment annexe to the charter; philanthropy within the family capital structure — foundations, DAFs and cross-border giving.
• Country regimes for the office: DIFC with a threshold of about $50m of aggregate net assets under the Family Arrangements Regulations 2023, the Hong Kong FIHV with 0% profits tax at HK$240m under management, Singapore trust structures and wealth planning in Singapore with the 13O and 13U regimes.

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