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Protecting the surviving spouse: the right reflexes to adopt

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When a spouse dies, the surviving spouse may find himself or herself faced with complex legal and property situations. Even if the law recognizes his or her rights, these may prove insufficient, particularly in the presence of children from another union. Fortunately, there are a number of ways of protecting them.

Choosing the right matrimonial property regime

In the absence of a marriage contract, spouses are automatically subject to the legal regime of community of acquests. This regime is not always the most protective for the surviving spouse.
For better protection, it is sometimes preferable to opt for another regime, such as universal community with full attribution clause. In the event of death, the entire joint estate automatically goes to the surviving spouse. Caution: this solution is not recommended in the presence of non-common children, who could contest this attribution.

Making a gift between spouses

Also known as a "last living gift", this option increases the surviving spouse's share of the estate, over and above his or her legal rights. There are several ways of doing this, depending on the composition of the family, and it can be particularly useful in the case of a blended family, for example, to guarantee enjoyment of the family home.

Good to know

Gifts between spouses can be made before or during marriage. But it is not set in stone. If your assets or needs change, it is possible to modify their content (always before a notary).

Creating a family SCI

The SCI(Société Civile Immobilière) is an excellent tool for managing and transferring a couple's real estate assets. In particular, it makes it possible to :

  • add a continuation clause for the surviving spouse
  • guarantee that the surviving spouse will keep his or her home
  • ensure a gradual handover to the children, while retaining control.

Taking out life insurance

Life insurance is an effective way of passing on capital to the surviving spouse, outside the estate, with advantageous tax treatment. Advantages include

  • rapid payment of capital to the beneficiary spouse
  • total exemption from inheritance tax between spouses, regardless of the amount involved
  • the possibility of protecting a civil union partner who is also exempt.
Pay particular attention to the wording of the beneficiary clause. It must be clear to avoid any confusion.

Include specific clauses

Without changing the matrimonial property regime, certain protective clauses can be included to strengthen the rights of the surviving spouse:

  • the preciput clause: allows certain joint assets to be withdrawn prior to any inheritance division
  • unequal sharing clause: authorizes an advantageous distribution of assets in favor of the spouse
  • Withdrawal clause with indemnity: enables the spouse to recover a specific asset in return for compensation (e.g. house, car, etc.).
  • last-to-die clause: transfers all joint property to the surviving spouse.

Notary

There are several legal ways to better protect your spouse. As each family situation is unique, it deserves a tailor-made solution. Together with your notary, you can choose the most effective tools for securing your spouse's future.
Last modified on : 7/24/25