Donation between spouses: how to protect your surviving spouse with the donation to the last survivor

Imagine a couple in Vauvert, married for forty years, owners of a house and some investments. They never made a will or a donation. When one passes away, the other finds themselves having to share the estate with the children from the first marriage. A situation that could have been avoided thanks to a simple notarial deed: the donation between spouses, known as the donation to the last survivor.

How many surviving spouses find themselves destitute, forced to leave their home or sell assets to satisfy the rights of the heirs? I come across this story almost every week in my practice. The donation between spouses precisely serves to strengthen the rights of the surviving spouse, by offering them an option between usufruct, the available portion, or a combination of both. But what does the law actually say, and how does this decision of the Nice Judicial Court shed light on the matter?

The case before us pits reserved heirs (children) against the second wife, who claims the benefit of a donation to the last survivor signed twenty years earlier. The court had to decide: was this donation valid and, above all, did it allow the widow to keep the entire house? The answer is nuanced, and it concerns you if you are married or if you wish to organise your succession to protect your spouse.

The facts: a story that happens every day

Mr X, a 78-year-old retiree from Le Vigan, had married Mrs Y as his second wife. From his first marriage, he had three children. Anxious to protect the woman who had shared his life for thirty years, he signed a donation between spouses before a notary in 2004. This document allowed Mrs Y, upon her husband's death, to choose between the usufruct of the entire estate (the right to use the assets and receive the income from them) or the full ownership of the available portion (the part of the estate that the law permits to give freely, without prejudicing the reserved heirs).

Upon his death in 2023, Mrs Y opted for universal usufruct, thinking she could thus remain in the family home in Vauvert. But the children from the first marriage contested this option, arguing that the donation had lapsed because Mr X had not renewed his consent after a change in their matrimonial property regime in 2010. According to them, this change of regime (from community property to separation of property) had tacitly cancelled the donation between spouses.

The case was brought before the Nice Judicial Court, which has jurisdiction over successions opened in the region. The debates lasted several hearings, each party sticking to their positions: the children invoked the wording of the Civil Code, while Mrs Y pleaded her husband's clear and constant will to protect her. The judgment of 16 April 2025 clarified the scope of a donation between spouses in the event of a change of matrimonial property regime.

The court's reasoning — analysed

The Nice Judicial Court relied on Articles 1094-1 et seq. of the Civil Code, which govern the donation between spouses. It began by recalling that this type of donation is a disposition mortis causa (taking effect upon death), and not an inter vivos gift (which would be irrevocable during the donor's lifetime). Consequently, the surviving spouse only becomes owner of the assets at the time of death, not before.

The judge then examined the argument of lapse. To invalidate a donation between spouses, it is necessary to demonstrate an express revocation or a clear intention of the donor to revoke it. A mere change of matrimonial property regime, even if it modifies the rules for managing assets, is not sufficient to imply a tacit revocation, unless the new notarial deed explicitly provides for it. In this case, the separation of property contract of 2010 contained no clause annulling the earlier donation.

The magistrates therefore validated the donation between spouses and confirmed Mrs Y's right of option. But note: the court also specified that the chosen option (universal usufruct) must not infringe the forced heirship (the minimum share guaranteed to children). In practice, Mrs Y could benefit from usufruct over all the assets, but the children retained their rights in bare ownership. In the event of a subsequent sale or gift of the house, they would have to be consulted and receive their share.

This reasoning confirms constant case law: the donation between spouses is a solid tool for protecting the surviving spouse, provided it is carefully drafted and not contradicted by later acts. Here, no contradiction having been established, the court ruled in favour of the widow. A notable evolution? Rather a confirmation: judges remain attached to testamentary freedom, but within the limits of the rights of forced heirs.

What this changes for you — practically

If you are a property owner in Vauvert or Le Vigan, this decision reminds you of the importance of drafting a donation between spouses, especially if you have children from a previous marriage. Without this deed, your surviving spouse only has the legal option of usufruct of one quarter or full ownership of one quarter in the presence of children (Article 757 of the Civil Code). With a donation to the last survivor, they can opt for usufruct of the whole, allowing them to remain in the family home without having to buy out the children's shares.

Let's take a concrete example: a married couple lives in a house valued at €300,000 in Le Vigan, with €100,000 in savings. The husband dies, leaving two children. Without a donation, the widow receives usufruct of one quarter of the house (i.e., €75,000 in usufructuary value) and must share the rest. With a donation to the last survivor, she can choose total usufruct over all assets, i.e., €400,000 in enjoyment, without having to sell or pay an equalisation payment to the children. The difference is immense.

What to do if you are in this situation? First, check whether you already have a donation between spouses. If so, ensure that its content is still adapted to your current situation (change of matrimonial property regime, birth of children, acquisition of property). If not, make an appointment with a notary to create one. The cost is modest (a few hundred euros) compared to the conflicts it can avoid. And if a dispute has already arisen, know that the courts, like that of Nice, protect the deceased's will when it is clearly expressed.

Four tips to avoid this type of litigation

• Draft a donation between spouses as soon as you marry, or upon the birth of a child or a property purchase. Waiting until old age exposes you to challenges regarding the donor's capacity.
• If you modify your matrimonial property regime, have a new donation deed drafted to avoid any ambiguity. Do not hope that an implied clause will suffice.
• Inform your heirs of the existence of the donation. Secrecy can create suspicion and unnecessary proceedings. A letter or a family meeting can ease tensions.
• Keep all notarial deeds in a safe place and give a copy to your spouse. If lost, proving the donation becomes difficult.

Further reading: related case law and developments

This decision follows in the wake of the Court of Cassation judgment of 12 January 2022 (No. 20-17.342) which had already held that a change of matrimonial property regime does not automatically entail the revocation of a donation between spouses. The courts are therefore consistent: the deceased's will prevails, provided it is expressed unequivocally.

But beware: if the donation between spouses was made before the marriage (for example in a marriage contract), it may be challenged in the event of divorce or de facto separation. The trend in case law is to protect the surviving spouse as long as the couple is united. For the future, one can expect judges to be increasingly attentive to evidence of the deceased's will, particularly through writings or testimony. If you want to secure your donation, add a clause specifying that it remains valid even in the event of a change of regime.

What you absolutely must remember

1. Is the donation between spouses revocable? Yes, as long as the donor is alive. You can modify or cancel it by notarial deed. After death, it becomes irrevocable.

2. Can I still sell a property if I opt for usufruct? Yes, but with the agreement of the bare owners (the children). In the event of a sale, the price will be divided between the usufruct and bare ownership rights.

3. What is the difference with a will? A will also allows you to bequeath assets, but it is more easily contested and does not give an automatic option to the spouse. The donation between spouses is more protective.

4. What if the children contest the donation? Consult a lawyer specialised in succession law. The contestation can be lengthy, but if the donation is valid, your rights will be recognised.

Are you in a similar situation? A first 30-minute consultation with Maître Perucca (€45) can save you months of proceedings — and often much more. Book an appointment →