Gift to the surviving spouse: principles and effects for the protection of the spouse

A gift to the surviving spouse increases their inheritance share. It is made before a notary, applies only to the assets you leave upon your death, and can be revoked at any time, unless it was made through a marriage contract. It broadens the surviving spouse's options regarding the estate. When it covers the entire estate in full ownership, children who disagree will have to take legal action to reduce it.

This page deals with married couples. It does not cover civil partnerships (PACS), cohabitation, non-resident spouses, assets located abroad, universal community property, the detailed calculation of the reduction allowance, or the monetary value of the usufruct. These points should be verified with a notary before making a decision.

What a gift to the surviving spouse does

A simple gift transfers an asset during your lifetime. A gift to the surviving spouse, on the other hand, takes effect upon your death. It only concerns assets you leave behind at that time. In fact, it is the only instance where the law allows the gift of future property: an asset you do not yet own can be included.

The spouse's share without a gift, then with a gift

Without a gift, the spouse's share depends on your family.

These shares are based on the regime of community property acquired after marriage. A marriage contract can modify them. The case of children who are both common and not common is not detailed here: it should be verified with a notary.

With a gift to the surviving spouse and in the presence of children, the spouse may receive, according to the provisions of the deed:

• 1/4 in full ownership and 3/4 in usufruct; ;
• the entire estate in usufruct; ;
• the portion available in full ownership.

The information sheet on service-public.gouv.fr presents these options in the section dedicated to the presence of children, without distinguishing between children who are children of the current marriage or not. It also indicates that the gift can cover the entire estate in full ownership. If there are no children, the gift allows the entire estate to be transferred to the spouse.

The available portion

This is the portion you can freely dispose of, even if you have children. It depends on the number of children at the time of your death. The portion reserved for the children is called the statutory share of the estate.

Usufruct: what it changes on a daily basis

Usufruct is the right to use a property and receive its income without owning it. Three practical consequences for the spouse holding the usufruct:

• He pays property tax and real estate wealth tax, according to the value of the property, when the usufruct relates to real estate.
• He carries out maintenance repairs. Major repairs are generally the responsibility of the bare owner, unless they result from a lack of maintenance.
• The usufruct ends upon his death, unless it is transferred by gift during his lifetime or by will.

The information sheet on service-public.gouv.fr regarding the surviving spouse's usufruct states that the usufruct can be converted into a life annuity or a lump sum until the final division of assets. It does not specify whether this refers to a usufruct established by law or one resulting from a gift: this point should be verified with a notary. For the annuity, the sheet indicates that its amount and indexation must be stipulated in an agreement. In case of disagreement, it refers the matter to the judicial court of the deceased's domicile, which sets the annuity amount and its revision. The judge cannot impose the conversion of the usufruct over the principal residence and its furnishings into a life annuity. For conversion into a lump sum, the sheet requires the agreement of all the bare owners; without this agreement, it is not possible.

Spouse's accommodation

Donating the property is not the only way to protect the family home. For the surviving spouse, the information sheet on service-public.gouv.fr regarding the surviving spouse's housing provides for a right to live in the home for life when the spouses were the sole owners, or when the deceased spouse was the sole owner. The intention to exercise this right must be expressed within one year of the death (in the latter case, to the other heirs). This right applies only if the home is the primary residence. If the home was jointly owned with other people, the right is for one year.

Form, procedures and cost

• A notarized document. The gift to the surviving spouse is made before a notary.
• Two acts for a reciprocal gift. If each spouse makes a gift to the other, two separate notarial acts are required.
• The central registry of last wills and testaments. The notary will register the gift there, unless you object.
• The cost. According to the information sheet on service-public.gouv.fr, drawing up the deed of gift costs €135.84 including VAT, payable to the notary. The sheet does not specify whether this amount applies to each deed; for a reciprocal gift (two deeds), it should be confirmed with the notary. Registration in the central registry may also be charged separately. The sheet does not specify the cost of this registration.

You can make it during the wedding, or before, through a marriage contract. If made before the wedding, it has no effect if the wedding does not take place.

Inheritance Taxation and Declaration

The gift does not affect your spouse's inheritance tax: the surviving spouse is exempt from inheritance tax. The information sheet on service-public.gouv.fr regarding spousal inheritance tax indicates that they must file an inheritance tax return. They do not have to file one if two conditions are met: the gross estate is less than €50,000 and they received only gifts made by hand or declared or registered gifts. This page does not address the taxation of your children.

Annulment, divorce, children's disagreement

• Revocation. You can revoke the gift at any time, either through a notary or by will, without informing your spouse. The exception: a gift made through a marriage contract cannot be revoked at any time.
• Divorce. The gift is automatically cancelled in the event of divorce, unless you decide to maintain it.
• The children disagreed. When a gift covers the entire estate in full ownership and the children disagree, they must file a claim for reduction. The surviving spouse then chooses between usufruct of the entire estate, one-quarter in full ownership with three-quarters in usufruct, or full ownership of the disposable portion, and this choice determines the amount of compensation owed to the children. This information sheet does not detail this calculation. In the deed of gift, you can allow the surviving spouse to choose their preferred option.
• Parents alive, no children. A living parent can exercise their right of return on property they gave to the deceased before their death. This should be discussed with a notary.
• Time frame for choosing between legal options. When the deceased leaves children together, the surviving spouse chooses between usufruct of the entire estate and full ownership of one-quarter. If the surviving spouse has not made a choice, any heir may request, in writing, that the spouse choose one of the two options. If the surviving spouse does not indicate their choice in writing within three months, they are considered to have opted for usufruct of the entire estate.

Numerical example (fictitious profile)

Situation. Marc and Hélène are married and have two children together. The assets Marc will leave upon his death are worth €600,000 (hypothetical situation), calculated in full ownership and without valuing any usufruct. Marc has not yet made a gift to the surviving spouse.

Issue. If Marc dies, Hélène can choose between the usufruct of the entire property or 1/4 in full ownership. Marc wants to know what additional provisions the gift would allow him to make for Hélène, in full ownership.

Strategy. Compare Helene's share of full ownership with the legal quarter and with the disposable portion, which is 1/3 for two children.

Result.

If Hélène chooses this option, the gift grants her an additional €50,000 in full ownership, one-third more than the legally required quarter. It also gives her the option of one-quarter in full ownership and three-quarters in usufruct, the value of which is not specified in the calculation: the value of the usufruct is not provided by the sources on this page.

With one child, the disposable portion is half: on the same basis, €300,000 in full ownership for Hélène, compared to €150,000 for the legal quarter. With three children, the disposable portion is a quarter: it equals the legal quarter, and the difference in full ownership is zero.

This profile is fictitious and the amount is hypothetical. The figures illustrate the calculation. They do not reflect your specific situation. If the gift covers the entire estate in full ownership, any disagreeing children will need to take legal action to reduce the gift.

What changes depending on your situation

• The number of children and whether they are common or not. They determine the legal share and the disposable portion.
• The presence of living parents if you do not have children.
• The composition of your assets, and what a usufruct implies for the spouse: property tax, maintenance, IFI.
• Your matrimonial property regime and your marriage contract, which may modify the indicated shares.
• Your future family situation : a divorce cancels the gift, unless it is upheld.
• Your residence and the location of your property This page does not deal with them.

The rule depends on your situation. No results are guaranteed.