Donation between spouses: how to protect your spouse without harming your children?

Imagine a couple in Cholet, married for forty years, owners of a house and some investments. The husband dies suddenly. The wife finds herself alone, but she fears having to sell the home to pay inheritance tax or to share with the children. She had heard of the 'donation to the last surviving spouse', but without knowing exactly how it works. This scenario, I often encounter in my practice, and the recent decision of the Douai Court of Appeal clarifies the rules of the game. So, how can this mechanism protect the surviving spouse without disinheriting the children? That's what we'll break down together.

The donation between spouses is a powerful but misunderstood tool. Many think it is a classic donation, which is not accurate. It is in fact a gift that takes effect upon the donor's death. It allows the surviving spouse to choose between several options: the usufruct of the entire estate, full ownership of a fraction (one quarter or one half), or a life interest usufruct. This choice can be crucial to avoid ending up on the street or having to sell sentimental property.

But be careful: this mechanism has its limits, and the Douai decision forcefully reminds us of this. When children from a previous marriage or even those of the couple contest the choices of the surviving spouse, the courts have to decide. This case perfectly illustrates the tensions that can arise, and it provides valuable keys to avoid them.

The facts: a story like many others

Mr and Mrs Dumont (I change the names to preserve confidentiality) were married in 1985 in Les Ponts-de-Cé, without a marriage contract. They had two children together. Concerned about leaving her husband financial security, Mrs Dumont had granted, by notarial deed in 2010, a donation between spouses covering all her assets. Upon her death in 2022, her estate consisted of a house valued at €300,000, bank accounts for €120,000, and a stock portfolio of €80,000. Under the donation, her husband could opt for the entire estate in usufruct, giving him the right to use and receive income from the assets, but not to dispose of them freely.

However, the children believed that their father, aged 78 and in a nursing home, did not need full usufruct. They wanted the house sold so they could recover their share in full ownership. The father, advised by his notary, had opted for universal usufruct. The conflict was inevitable. The children sued their father before the Angers judicial court, which ruled in favour of the father on the principle of the option, but ordered an expert appraisal to assess the economic balance. Unsatisfied, the children appealed to the Douai Court of Appeal.

The court had to answer a central question: can a surviving spouse freely choose universal usufruct, even if it contradicts the interests of the protected heirs (the children)? And above all, is this choice final or can it be challenged later? The stakes were high: if the father kept the usufruct, the children would have to wait for his death to dispose of the bare ownership. At 78, life expectancy was against them.

The reasoning of the court — explained

The Douai Court of Appeal upheld the first instance judgment, but clarified the scope of the option offered to the surviving spouse. It relies on Articles 1094-1 et seq. of the Civil Code, which govern the donation between spouses. Specifically, these texts allow the spouse to choose, at the time of death, the disponibility between spouses (the part of the estate that the deceased could freely give) in the form of usufruct, bare ownership or full ownership. The court recalls that this choice is a personal right of the surviving spouse, and can only be challenged by the heirs if it is abusive.

In this case, the children argued that the option for universal usufruct was abusive because it deprived them of any enjoyment of the assets for many years. The court dismissed this argument, emphasising that usufruct is precisely the protection that the law grants to the spouse. There is only abuse if the spouse uses his right with the intention of causing harm or without legitimate interest. However, Mr Dumont had an obvious interest: keeping the house where he had lived, even if he was in a care facility, to possibly return there. Moreover, he received income from the investments. The court therefore held that the option was valid.

A crucial point: the decision specifies that the choice of usufruct is not final in the sense that the spouse may later renounce the usufruct or convert it. But this renunciation must be express and notarised. Here, Mr Dumont had not expressed such intention. The court emphasises the need to respect the deceased's will, as expressed in the donation. This is a confirmation of established case law: the donation between spouses is a precautionary act that must be executed according to the donor's wishes.

This reasoning contradicts the idea that children could demand a forced sale. The court recalls that usufruct gives the spouse a right of use and enjoyment, and the bare owners (the children) cannot compel him to sell. However, they can claim compensation if the usufructuary damages the property or uses it abusively. That was not the case here.

What this changes for you — practically

If you are married and want to protect your spouse, this decision confirms that the donation between spouses is an effective tool, but one to be handled with care. For a couple in Cholet with two children, if you opt for universal usufruct, your spouse can live in the house and receive rents or dividends, while your children will have to wait. If your spouse has specific needs (nursing home, dependency), usufruct can be a lifeline.

For children, the news is more mixed. If they are protected heirs (descendants), their share in full ownership is guaranteed, but they cannot dispose of it until after the surviving spouse's death. If the spouse is young (e.g., 50), the wait can be long. In such cases, it is possible to negotiate a conversion: the spouse can accept a right of use and habitation (which is less extensive) in exchange for a sum of money or an asset. This allows the children to recover their rights more quickly.

Let's take a numerical example: in Cholet, a property worth €300,000 in full ownership. If the spouse chooses universal usufruct, its fiscal value is estimated at 40% of full ownership (according to an age-based scale). For a spouse aged 78, the usufruct is worth 30% (i.e., €90,000). The bare ownership is worth 70% (€210,000). The children share these €210,000, but they receive nothing as long as the spouse lives. If they needed liquidity, they could mortgage their share, but that is complex.

In practice, if you are in a similar situation, you should contact your notary to establish a donation between spouses. But above all, you must anticipate conflicts by discussing with your children. A family meeting can help find a balance, for example by providing for a limited right of use or life insurance to compensate.

Four tips to avoid this type of dispute

• Draw up a donation between spouses before a notary: this authentic deed is essential for it to be valid. Do not rely solely on a clause in a will, as the donation offers more flexibility (usufruct/bare ownership option).
• Inform your heirs during your lifetime: explain the mechanism and your intentions to them. A letter or a meeting can clear up misunderstandings. If your children understand that you wish to protect your spouse, they will be less likely to contest.
• Consider adjustments: you can provide that your spouse will have a right of use and habitation (which ends if he or she leaves the premises) rather than universal usufruct. This gives more certainty to the heirs.
• Update your donation according to changes: if your financial or family situation evolves (sale of the house, new spouse, birth of a child), have the deed revised. Otherwise, abuse could be alleged.

Further reading: related case law and developments

This decision fits into a consistent line: the Court of Cassation, in a judgment of 7 March 2018 (No. 17-15.879), had already ruled that the surviving spouse's choice between the options of the donation between spouses is free and can only be challenged for abuse. The Douai Court of Appeal strictly applies this principle. However, a more recent decision of the Paris Court of Appeal (2023) admitted that the spouse could be required to pay an occupation indemnity to the estate if he or she alone uses a marital asset for more than five years after death, even as a usufructuary. This divergence shows that the question of balance between spouse and children is still debated.

In the future, the law of 23 June 2006 strengthened the rights of the surviving spouse, and case law tends to protect them. But children are not helpless: they can request the conversion of the usufruct into a life annuity or capital (Article 1098 of the Civil Code). The trend is therefore towards finding a balance, but the spouse remains a priority.

What you absolutely need to remember

Here is an FAQ to answer the most common questions:

1. What is the benefit of the donation between spouses? It allows the surviving spouse to choose the best option to keep the use of the assets, without being forced to sell.
2. Can I disinherit my children? No, your children are protected heirs. They are entitled to a minimum share (the reserve). The donation between spouses only covers the disponibility.
3. What are the risks of conflict? Children can contest the spouse's choice if it is abusive. To avoid this, prioritise transparency and consider compromises.
4. Must I necessarily go through a notary? Yes, for the donation to be valid and enforceable against third parties, it must be executed before a notary. A simple holographic will is not sufficient.
5. Can I change my choice after death? Yes, the surviving spouse may renounce the usufruct or convert it, but by notarial deed. He or she cannot change their mind if they have already opted within the legal time limit (generally one month after death).

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