In the event of separation, one of the spouses may be tempted to harm his or her spouse. If the latter can be disadvantaged, he or she can hardly be disinherited!
A reminder of a few principles to avoid disappointment
If you do not make any arrangements before your death by making a will, the Civil Code sets out the "procedure" for settling your estate. It then designates the order of heirs. If you are married, what happens to your surviving spouse? If by any chance they no longer get along, is it possible to disinherit their other half? This will depend on whether or not there are children. It should be remembered that the surviving spouse (married) has a temporary right of use of the family home and its furnishings for a period of one year from the date of death. This right is a matter of public policy, which means that it cannot be waived. On the other hand, the spouse's right to the life estate until his or her death can be deprived of it by authenticated will.
Beware also of unpleasant surprises with the donation between spouses ! Indeed, one of the two spouses can unilaterally revoke it at any time without the other being informed. The one who revokes it remains on his side beneficiary of the donation to the last living. One generally discovers the "pot aux roses" in the office of his notary, at the time of the settlement of the succession. Atmosphere guaranteed!
No children: systematic inheritance for the spouse
Since the law of December 3, 2001, when one's spouse dies and in the absence of children, the surviving spouse is a reserved heir. Even if the deceased had manifested a contrary will, the surviving spouse is certain to receive at least one quarter of the estate . He or she cannot be disinherited. He or she may also be entitled to more, depending on the existence of other heirs. Thus, article 755-1 of the Civil Code provides that the estate shall be divided as follows:
- The surviving spouse will get half of the estate if both parents of the deceased are alive (they receive the other half),
- He or she will receive three-quarters of the estate if only one of the parents is alive
- and he or she will inherit the entire estate if both parents of the deceased are deceased themselves.
With children: spouse may be left out
If there are living children (common or from another marriage), the law allows the surviving spouse to be disinherited. The other spouse is then free to pass on all of his or her property to the children. To do so, the surviving spouse must have clearly specified this provision in his or her will (holographic or authentic), without being required to justify it or to notify the person concerned. In this case, the spouse is not a reserved heir. Only the children have this status. The spouse can thus be excluded from the estate, even if there are no divorce proceedings underway.
In order not to complicate family relations at the time of death, it is possible to reduce the legal rights of the surviving spouse, without excluding him or her completely, for example by granting him or her only the usufruct of one or more properties. This will allow, at his death, the bare owner children to recover the concerned property without paying any rights.
Beware of divorce in progress
As long as the divorce decree is not final, the matrimonial regime and its consequences are applicable. The spouse retains the right to inherit.
Stéphanie Swiklinski