With this arrangement, a spouse can bequeath to the surviving spouse a larger share of the estate than that provided for by law.

Although donations between spouses can relate to present assets, most are aimed at providing for the surviving spouse in the event of a death. They take effect at that moment in time. It is possible to give more to your spouse than to any other person.

Donation to the last living

A donation between spouses may relate to the assets that the donor will leave upon their death. This is known as donation to the last living or donation of future assets. These donations, obligatorily made by a notarial legal instrument, are possible whatever the matrimonial regime of the spouses.

A donation to the last living makes it possible to increase or determine the rights of one’s spouse.

The term used is an “extended disposable portion” for the benefit of the surviving spouse. This allows a spouse to give the maximum to their spouse:

  • either full ownership of the ordinary disposable portion, which is variable according to the number of children (1/2 if the deceased is survived by a child; 1/3 for two children; or 1/4 for three or more children),
  • a quarter in full ownership and three-quarters in usufruct,
  • or the entire estate in usufruct.

If the deceased leaves no offspring, that is to say no rightful heirs, the spouse can be granted the entire inheritance.

Agreed during married life, these donations are freely revocable: at any time and without any legitimate reason. In the event of divorce, they are revoked as of right, except when this is contrary to the will of the spouse who has granted them.

Donation of present assets

Donations of assets between spouses are possible even if they are fairly rare. Those granted since 1 January 2005 are irrevocable if they take effect during married life. It is theoretically possible to provide for a non-divorce termination clause, but this clause should be worded carefully or else it could be declared illegal.

If the donation did not take effect during married life (reversion of usufruct, for example, life insurance contract for the benefit of the spouse), it is freely revocable.

Worth knowing:

Donations made before 1 January 2005 are freely revocable at any time.

 

Reference text:

Article 1091 et seq. of the French Civil Code Article 913 of the French Civil Code 
Article 265 of the French Civil Code