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What is representation in inheritance law?
The rule of representation is established by Article 751 of the Civil Code. It allows the descendants (children, grandchildren, great-grandchildren) of a deceased person to inherit in his or her place.
People who may be represented by their descendants are:
- the predeceased children of the deceased (that is, those who died before the deceased): this is referred to as representation in the direct line,
- the predeceased brothers and sisters of the deceased: this is referred to as representation in the collateral line.
Example: grandchildren who inherit alongside their aunt in the succession of their grandparents, by representing their predeceased father and/or mother
Good to know: the mechanism of representation may also apply when an heir renounces the succession or is declared unworthy to inherit.
The scope of representation in inheritance law
Article 752 of the Civil Code provides that, in matters of representation in the direct line, representation extends indefinitely, allowing a person to inherit regardless of the number of generations (grandchildren, great-grandchildren, etc.).
By contrast, Article 752-2 limits representation in the collateral line to the children and grandchildren of the deceased’s predeceased brothers or sisters.
Note: representation can only occur if there is a plurality of branches, meaning separate family lines descending either from the deceased or from one of the deceased’s brothers or sisters.
For example, if the deceased had only one child who predeceased them, that child’s descendant cannot inherit by way of representation, but only in their own right, that is, as the grandchild of the deceased.
In summary, representatives may inherit by representation only when they share the succession with other heirs.
What is the tax treatment of representation in inheritance law?
In the direct line
The descendants of the represented heir take that heir’s place in succession. Consequently, they may benefit from the same inheritance tax allowance that the represented heir would have been entitled to, and they share it among themselves.
Example: two grandchildren inherit from their grandfather by representing their predeceased father. Each benefit from an allowance of €50,000, representing half of the €100,000 allowance their father would have received as a child of the deceased.
If the deceased had only one child, the tax authorities make an exception to the requirement of multiple branches and allow the grandchildren to benefit from the allowance granted to their parents. In civil terms, they inherit from their grandparents, not by representation.
In the collateral line
The descendants of the represented brother or sister take their place in the succession and share the corresponding tax allowance.
Example: four nieces inherit (along with their two aunts) from their uncle by representing their predeceased mother. Each receives an allowance of €3,983, one quarter of €15,932)
As for the applicable tax rate, nephews and nieces benefit from the rate applicable between brothers and sisters: 35% up to €24,430 and 45% beyond that amount
Note: if the deceased had only one brother or sister, the nephews and nieces inherit, not by representation (since there is no plurality of branches). In that case, each is entitled to an allowance of €7,967, and the applicable tax rate is 55%