Historically, the surviving spouse has had something of a raw deal in French inheritance law.
This is because the law has traditionally considered that the estate of the deceased belongs to the whole family, rather than any single member of it.
Accordingly, under French law the surviving spouse does not automatically inherit the whole of the estate of their deceased.
The amount of the estate inherited by them depends on the number of children, and they only have statutory inheritance rights in the absence of children (or grand-children).
Indeed, before reforms carried out in 2002, the order of inheritance placed the surviving spouse behind that of cousins of the deceased!
Nevertheless, since 2002, the inheritance rights of the surviving spouse have substantially improved, and there are also additional inheritance planning measures than can be taken by a couple to ensure their interests are almost entirely protected.
Only that part of the estate belonging to the deceased is subject to inheritance laws, so a surviving spouse will normally retain ownership of at least 50% of their jointly held assets. The spouse will also retain ownership of all their own assets acquired before the marriage, subject to any marriage contract they may have adopted.
Below we review the circumstances of the surviving spouse where there are children from the marriage (or previous relationship), and then where there are no children.
Remember, we are talking about an intestate inheritance, or the absence of any inheritance planning having been taken.
Children are specifically protected from being disenfranchised from the inheritance.
That part of the estate that is earmarked for descendants is called la réserve; that part of the estate that is freely disposable is called the quotité disponible.
The amount of la réserve and the amount freely disposable will depend on the number of children.
The following table illustrates the entitlement under la réserve and the amounts freely disposable.
Table: La Réserve
| Inheritors | Réserve | Freely Disposable |
|---|---|---|
| Spouse | 1/4 of estate | 3/4 of estate * |
| One Child | 1/2 of estate | 1/2 of estate |
| Two Children | 2/3 of estate | 1/3 estate |
| Three Children | 3/4 of estate | 1/4 estate |
*Only freely disposable in the absence of children, (or grand-children), i.e. protected heirs.
What this table is saying, therefore, is that in the presence of children (or grand-children) the surviving married spouse receives a minimum of 1/4 of the freehold of their deceased’s estate.
Thus, if you die leaving a surviving spouse and two children then, as a minimum, your spouse will receive 1/4 of your estate, the children 2/3 of your estate, with the remaining 1/12th freely disposable, e.g. to your surviving spouse.
Whilst, therefore, the surviving spouse receives a minimum of 1/4 of the estate of their deceased, provided there are no children from outside of the relationship, they also have the right to choose how it is received.
Accordingly, the surviving spouse has the choice between:
A minimum of one quarter of the freehold (called plein propriété) of the estate, with the children dividing up to three quarters of the reversionary interest (called nue-propriété) between them in equal amounts.
Life use (called usufruit) of all of the estate, with the children receiving the reversionary interest (nue propriéte).
The precise division between spouse and children will depend on the number of children and the wishes of the spouse, but s/he cannot receive less than the above.
The surviving spouse can opt for one or other of the options but, in the absence of any clear declaration, then the law will imply that they have opted for life use.
One advantage of taking life use is that, when the surviving spouse dies, the freehold interest of the property is automatically transferred to the children, without any additional taxes being payable.
Where there are children from outside of the relationship then the surviving spouse is only entitled to opt for 1/4 of the freehold, and the children receive 3/4 of the freehold. Thus, with children outside of the relationship, the surviving spouse cannot opt for life use.
Even should the surviving spouse take 1/4 of the freehold they also retain the right (l'attribution préférentielle) to continue to occupy the principal home for the rest of their life, and to use of the contents, provided the property was in the name of the deceased or the couple only.
This right of life occupation is called droit viager and remains even in the event of remarriage.
In such circumstances, some compensation may be payable to the other inheritors, but the spouse can ask for up to 10 years to pay.
There are two further conditions attached to this right of viager. First, it is subject to the deceased not having expressly excluded it in a Will. Second, a decision to take up the right of viager should be made within a year of the death, and declared to the notaire as part of the succession process. Unless due procedure is followed the surviving spouse risks losing this right, as we reported in our article Surviving Spouse Right to Marital Home.
In addition, the right of viager does not apply where the property is held by an French property company (SCI), so in these circumstances careful drafting of the articles, and making proper provision for the surviving spouse, are necessary.
During the twelve months following the death the surviving spouse has the right to live free of charge in the principal home, and to claim financial support from the beneficiaires (through the estate of the deceased) if they are in financial need. This right is automatic, provided the property was owned by the deceased or the couple only.
Children of the couple born outside of the marriage benefit from the same rights as those of the children from within the marriage, as do children of the deceased born with another partner.
With the growth in second marriages, and as the number of children from a previous relationships increases, this is becoming an increasing problem in inheritance planning.
Clearly, if any of the children are estranged, or have a poor relationship with the surviving spouse, it may complicate settlement of the estate to the detriment of the surviving spouse.
If you are estranged from any of your children, which could then lead to problems concerning the disposal of real estate after your death, then you may wish to consider leaving it to those children with whom you are in contact in a will. Whilst those favoured by such a procedure would would need to compensate their brother/sister (assuming it exceeded in value the proportion of your estate to which they were entitled), they would at least have control of the real estate, as they would not share ownership with them.
Adopted children of the couple benefit from the same rights as natural children, but they are excluded from any rights of inheritance from their natural parents. A step-child has no inheritance rights, except from the natural parent, unless they are adopted.
The grand-children receive no entitlement, unless one of the children of the deceased is themselves deceased. In which case, they step into the shoes of their deceased parent. They would also have rights if your child(ren) renounced their inheritance.
Finally, remember also the right of parents to the return of gifts made to their child and the special rules that apply to family heirlooms, both of which were covered in the section on Basic Rules.
Where the couple do not have any children then the surviving spouse is entitled to inherit the whole of the estate, unless any of the parents of the deceased are alive.
Where the parents are still alive, and in the absence of any inheritance planning having been taken, the surviving spouse receives 1/2 of the freehold of the estate, and the parents of the deceased (if they are alive) receive a 1/4 each.
Where the deceased has only one of their own parents still alive, the surviving spouse receives 3/4 of the estate, and the surviving parent of the deceased receives 1/4 of the estate.
However, the parents have no entrenched rights of inheritance, so it is possible through a French marriage contract, a will or gift, for the deceased to ensure that the surviving spouse receives all of their estate.
In the presence of a surviving spouse, no other family members have any entitlement to the estate of the deceased.
Nevertheless, in the absence of inheritance planning being taken, remember the basic right of parents to the return of gifts made to their child, and the special rules that apply to family heirlooms, both of which were covered in the section on Basic Rules.
In order to modify the statutory rights of protected heirs and others it is possible to undertake some inheritance planning measures, which would offer added protection to the surviving spouse.
Such action might include:
The surviving spouse can also choose not to take up all the inheritance rights due to them, which may be of interest to those with children from outside of the marriage, who might otherwise face tougher gift or inheritance tax liabilities if they were later to receive property from the surviving spouse.
Read more about these options in the section on Inheritance Planning.