Donations between spouses - A small act of great interest

Why make a gift between spouses?

An inter-spousal gift is the ideal way to boost your spouse's "share of the inheritance". In the case of children, a gift between spouses is particularly interesting, as the children always benefit if no provision has been made. A distinction must be made between two situations:
If you have children, the surviving spouse receives either all the deceased's assets in usufruct, or 1/4 in full ownership.
With an inter-spousal gift, the surviving spouse's rights are extended, at his or her discretion, to :
- usufruct of the entire estate ;
- 1/4 full ownership and 3/4 usufruct;
- full ownership of the available portion of the estate (i.e. the portion not reserved for the children).

If one of the spouses has children from a previous union, his or her spouse can only receive 1/4 of the estate in full ownership.
With an inter-spousal gift, he or she can claim, at choice, :
- more extensive full ownership rights ;
- usufruct of the entire estate;
- a combination of full ownership and usufruct.

In general, it is at the time of the estate settlement that the surviving spouse will exercise his or her option by means of a deed called a "declaration of option."

Why choose the all-usufruct option?

This "all in usufruct" option may concern spouses over 70 years of age, for example. Even if the surviving spouse already benefits from a "right of occupancy" of the couple's home under article 763 of the French Civil Code, it enables him or her to obtain full use of it. If he needs to move into a retirement home, or if he has unforeseen expenses, he will be able to rent out the property and receive rent for the rest of his life. However, even if he chooses this option, and in accordance with the law, he will not be able to sell the property without the agreement of his children, who in this case are bare owners. This option also allows the surviving spouse to enjoy the use of the bank accounts. He or she can use the money available in the deceased's bank accounts as he or she sees fit, and receive income from his or her savings products. The aim is to ensure that the deceased's standard of living does not fall, but to achieve this, you need to have thought ahead!
Temporary right to the home (for one year)
The surviving spouse is guaranteed free use of the marital home and furniture for one year after the death of the spouse (art. 763 of the French Civil Code).

Can a gift between spouses be annulled?

A gift between spouses can be cancelled at any time by either spouse, even if the gift was made reciprocally. No proof is required. Most surprisingly, there is no need to notify the spouse of this decision. Cancellation of a gift between spouses is of course done by notarial deed, but it can also be done by will. Simply state "this is my will, which revokes all previous provisions..." and the matter is settled! As the notary is bound by professional secrecy, this can come as a nasty surprise when it comes to settling the estate!

Stéphanie Swiklinski