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The precipitating clause: invaluable protection for your spouse

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The precipitated inheritance clause, despite its unusual name, is an extremely important legal measure for guaranteeing protection and security for the surviving spouse. It also offers considerable flexibility in its application.

Maximizing marital protection

Under article 1515 of the French Civil Code, the preciput clause allows the surviving spouse to extract, in full ownership, certain assets from the community on the death of the other spouse, without any obligation to compensate. These assets may exceed the value of the surviving spouse's legal share of the estate. In practice, the preciput is often applied to the main residence, enabling the surviving spouse to become its sole owner and avoid the complications of usufruct or joint ownership. The surviving spouse can decide independently to sell the property without seeking the agreement of the bare-owner children. Other types of assets may also be included, such as rental property, life insurance policies, securities accounts, business assets or furniture.
At death, the choice of whether or not to use this clause lies with the surviving spouse, who can waive it in whole or in part, depending on his or her needs. The deduction precedes any division of the estate, so does not affect the spouse's share of the inheritance. Nor is there any compensation. What's more, the precipitating clause is neither an act of partition nor a gift.

Useful information

The content of the precipitating clause depends on the composition of the couple's assets, their shared aspirations and the family context. Your notary will work with you to design a tailor-made clause perfectly suited to your situation.

Incorporating the pre-deed clause into the marriage contract

The preemption clause is generally stipulated in the marriage contract, drawn up by the spouses before the union. It can also be added when the matrimonial property regime is modified, always requiring the consent of both parties. This decision must be recorded in a notarial deed.
To be valid, the clause must :

  • Be explicitly worded to avoid conflict in the event of the death of a spouse.
  • Concern only joint property; private property is excluded. However, under a regime of separation as to property, the creation of a partnership of acquests may enable certain assets to be covered by the clause.
  • Respect the hereditary reserve: if it exceeds the available share, the heirs may bring an action to reduce it.
  • Do not harm children from a previous union, who may otherwise bring an "action en retranchement" to restrict this benefit, as stipulated in article 1527 of the French Civil Code.

Important

Unlike gifts between spouses (or "to the last of the living"), the preciput clause cannot be revoked without the mutual agreement of the spouses. However, in the event of divorce, the clause is automatically cancelled, unless the spouses agree otherwise. The preciput clause is a powerful tool for securing the future of the surviving spouse, while protecting the interests of the other heirs.

Ethymology

The term "preciput" originates from the Latin legal term "praecipuum", meaning "that which is taken first". It is made up of two elements: "prae", meaning "before" or "first", and "capere", meaning "to take". "Precipuum" literally means "that which is taken before" or "that which is taken first".
Last modified on : 2025-01-07