Usufruct of the surviving spouse: can it be converted into a life annuity or a lump sum?

Yes, under certain conditions. The surviving spouse who receives the usufruct of the estate can convert it into a life annuity or a lump sum until the final division of assets. The annuity can be agreed upon with the heirs who are the bare owners, or requested from a judge in case of disagreement. The judge cannot impose it on the principal residence and its furnishings. The lump sum requires an agreement: without one, it is not possible, and the official guidelines do not provide for recourse to a judge.

This page does not address the amount of an annuity or a lump sum: the official conversion sheet provides neither an amount nor a calculation method. It also does not address income tax on the annuity, nor the tax treatment of a civil partner or cohabiting partner.

Where does the spouse's usufruct come from?

Service-public.gouv.fr defines usufruct as the "right to use a property and receive rental income from it, without being able to dispose of it, in particular sell it." Three situations determine the share of the married spouse.

The disposable portion is half with one child, one-third with two children, and one-quarter with three or more children. Service-public.gouv.fr indicates that the surviving spouse's share "may differ if the spouses have a marriage contract." A gift to the surviving spouse also modifies it. These points should be verified in your marriage contract and with the notary.

In the case of children from the marriage (first line of the table), any heir may request in writing that the surviving spouse choose between the two options. According to service-public.gouv.fr, if the surviving spouse "does not make their choice known in writing within 3 months," they are granted the usufruct of the entire estate. If they die without having made a choice, they are deemed to have opted for the usufruct of the entire estate.

A gift to the surviving spouse is made by notarial deed. Service-public.gouv.fr indicates a cost of €135.84 including VAT for the deed, plus the possible registration in the central register of last wills and testaments. It is revocable at any time and automatically cancelled in the event of divorce, unless the gift is maintained. It is available to married couples; couples in a civil partnership or cohabiting partners cannot make such a gift.

What the usufruct gives, and what it leaves to the children

The usufructuary uses or rents out the property and receives the income. They can sell or transfer their usufruct free of charge without the bare owner's consent. Selling full ownership requires the bare owner's consent.

Regarding expenses, the usufructuary is responsible for routine maintenance. Major repairs are the responsibility of the bare owner, unless they result from a lack of maintenance by the usufructuary. Service-public.gouv.fr states: "Major repairs are the responsibility of the bare owner."«

Convert into a life annuity

With agreement. The surviving spouse decides on the procedure with the heirs who are the bare owners. The amount of the annuity and its indexation are fixed in a conversion agreement. A notary can determine the value of the usufruct to be converted.

Without agreement. The application for conversion is filed with the judicial court of the deceased's domicile, along with the estate documents provided by the notary. If the judge accepts the application, they will determine the amount of the annuity and the method of indexation.

The limit. Service-public.gouv.fr states: "The judge cannot force you to convert the usufruct of the main residence and its furnishings into a life annuity."«

The definition of who can bring a case before a judge, and under what conditions, differs between the information sheet on service-public.gouv.fr and the BOFiP tax guidelines. This point should be verified with a notary before taking any action.

Convert to capital

The capital can only be determined by mutual agreement. Service-public.gouv.fr states: "the conversion of usufruct into capital is not possible" without such an agreement. The information sheet does not provide for recourse to a judge regarding the capital.

The individuals whose consent is required are not described in the same terms by the two official sources consulted. This is confirmed by the notary, in your file.

The capital amount is fixed in a conversion agreement, and a notary can determine the value of the usufruct. According to the BOFiP (French Official Tax Bulletin), conversion to capital by agreement falls under the category of division of assets. It does not have retroactive effect unless otherwise stipulated by the parties.

Rent and capital side by side

What the conversion changes from a tax perspective

The surviving spouse is totally exempt from inheritance tax (economie.gouv.fr, article of 27/07/2026).

As for the rest, the BOFiP doctrine (version in force since 11/04/2016) states three things:

• Conversions into life annuities or lump sums are subject to the fixed duty applicable to unspecified transactions. The BOFiP (Official Bulletin of Public Finances) does not specify the amount, and this page does not provide a figure. ;
• If the parties provide for a retroactive effect upon death, inheritance tax is based on the value of the capital or annuity; ;
• If the conversion has a retroactive effect set at the date of death and occurs after the filing of the inheritance tax return, a supplementary declaration must be filed within six months of the conversion.

Numerical example (fictitious profile)

Situation. Isabelle, 68, loses her husband. They have no will, no survivorship clause, and no prenuptial agreement that would modify the inheritance shares (hypothetically). They have two children together. The estate is valued at €1,200,000 (hypothetically). She chooses, or is deemed to choose, the usufruct of the entire estate.

Issue. What does each of the two legal options represent on paper, and can we deduce an annuity or a capital sum from them?

Strategy. The firm reviews the option, the reference age and the timetable with the family and their notary before the division.

Result. The scale in Article 669 of the French General Tax Code (CGI) values the usufruct according to the age of the usufructuary, assessed at the time of transfer. At 68 years old, Isabelle falls under the category "under 71 years of age": usufruct 40 %, bare ownership 60 %.

The same inheritance, with the same option 1, results in a different tax value for the usufruct depending on age:

With a gift to the last surviving spouse, the available portion for two children would be one third, or €400,000 in full ownership.

These figures represent tax values and legal shares. They do not constitute an annuity amount or a capital conversion sum: the example does not calculate these, as the official document lacks a specific method. The profile is fictitious. The €1,200,000 asset figure is hypothetical. The figures do not predict any specific outcome for your family.

What changes depending on your situation

• The origin of your usufruct: legal choice, gift to the surviving spouse, marriage contract.
• The presence of children not common to the couple, which changes the spouse's share.
• The nature of the property, in particular the main residence and its furnishings.
• The agreement, or lack thereof, of the bare ownership heirs.
• The timing: conversion is possible until the final division, and the choice of spouse is subject to a period of 3 months after the written request of an heir.
• Your age, which determines the tax value of the usufruct.

The rule depends on your situation and is verified on your file. No results are guaranteed.