French property regimes an imperfect sub for prenuptial

QMy wife and I have been happily married for almost 24 years and live in Massachusetts. We have twins who will be heading off to college in Europe in the fall — one to Spain, the other to France. Several years ago, my wife inherited her childhood home in France, so we have decided to sell our home and move there.

I understand the laws are different in France. We have a prenuptial agreement here that protects each of our inheritances, but I am told it will not be enforced in France because they do not have prenuptial agreement laws.

Is there a way to protect our agreement once we move? We have a strong marriage, but I know there are no guarantees in life. A Do not be so certain France would not respect the terms of your Massachusetts prenuptial agreement. If you move to France and your marriage unexpectedly goes south, France would apply the March 14, 1978, Hague Convention on the Law Applicable to Matrimonial Property Regimes. Under this convention, the French court would apply the law of the place where the parties were married and first established their marital domicile. For you, that is Massachusetts. If you can convince the French judge that your Massachusetts prenuptial agreement is fully enforceable in Massachusetts, it should be honored in France. However, “should” is the key word. Because nothing in life is guaranteed, there is another option.

When you get to France, you and your wife can see a French notaire and ask that person to prepare a Change of Matrimonial Regime. In France, a couple has the right to choose at the outset of the marriage whether they want a joint property regime or a separate property regime. This is true in several European countries. If you each truly want to protect your inherited assets from the other, you can choose a separate property regime.

The downside to this plan is it will make all your assets separate property. Whatever you earn from your job would be your assets alone. Likewise, whatever your wife earns would be her separate assets. I do not know if this is what you and your wife want, especially if one of you stayed home for a period of time or took a lesser job in favor of being more available to your children. Depending on the size of the inheritance, you may want to leave well enough alone and just hope the French court does the right thing in applying Massachusetts law should the circumstance ever arise.

Before you do anything, talk with a French family law attorney before taking any drastic steps. It may be that a separate property regime election impacts your estate plan too, so you want to be sure there are no unintended consequences of your actions.

Wendy O. Hickey has since 1994 been involved in and since 2003 been a trial lawyer who concentrates her practice on national and international family law. Any legal advice in this column is general in nature, and does not establish a lawyer-client relationship. Send questions to dearwendy@bostonherald.com.