Donation between spouses: protecting your spouse after inheritance

Jean-Paul, a 72-year-old retiree, lives in a small house in Hayange which he acquired with his wife Marie. Upon his death, he wants Marie to be able to continue living there without being forced to sell or share with their two children. Like him, you may wonder: how can I guarantee that my spouse keeps the use of our home after my death? And if a child demands their share, what happens?

The donation between spouses, also known as the gift to the surviving spouse, is often an overlooked legal tool. Yet thousands of couples use it each year to adapt the legal rules of inheritance. However, in court, its interpretation gives rise to disputes. The judgment of the Versailles Court of Appeal of 21 June 2025 clarifies the rights of the surviving spouse against forced heirs.

What exactly does this decision say? What are your concrete rights if your spouse dies without making any specific provision? And how can you avoid ending up before a judge like the parties in this case? I suggest we dissect this judgment together, with examples drawn from everyday life in Hayange or Montigny-lès-Metz.

The facts: a story like many others

Mr X, a homeowner in Hayange, was married under the regime of community of property acquired after marriage ('communauté réduite aux acquêts'). He had three children from a first marriage and a second wife, Mrs Y. To protect her, he signed a donation between spouses before a notary in 2018, granting her the usufruct (the right to use and enjoy) of all his assets. Upon his death in 2023, the estate comprised a house in Hayange (valued at €250,000) and a portfolio of securities worth €120,000.

The children from the first marriage contested the donation, arguing that it infringed their reserved share ('réserve héréditaire', the minimum portion guaranteed by law). They sought the conversion of the usufruct into a life annuity, or alternatively, payment of a lump sum. Mrs Y wished to retain the usufruct so she could continue living in the house without having to rent or sell.

The first-instance court ruled in favour of the children, ordering conversion. Mrs Y appealed. The Versailles Court of Appeal was asked to decide. The issue was simple: can the surviving spouse be forced to give up their usufruct in exchange for financial compensation?

The court's reasoning — explained

To understand this decision, you first need to grasp a key point of inheritance law: the reserved share. Article 912 of the Civil Code (which sets out the portion of inheritance reserved by law to descendants) prohibits prejudicing children. In the presence of a donation between spouses, the surviving spouse enjoys broader rights, but must not encroach on this reserved share. If it does, the forced heirs can demand reduction of the donation (Article 920 of the Civil Code).

In this case, the court examined whether the overall usufruct granted to Mrs Y was excessive. It calculated the value of the usufruct based on the widow's age (68 at the time of death): according to the tax scale, the usufruct represented 30% of the value of the assets. However, the reserved share of the three children was set at 75% of the estate (one quarter each). Mrs Y's share (usufruct over 100% of the assets) exceeded the disposable portion (25%), so it encroached on the reserved share.

The court therefore confirmed the principle of an infringement of the reserved share. However, it innovated by refusing automatic conversion into an annuity. The judges considered that the deceased's wish to protect his spouse should prevail, as long as the usufructuary could demonstrate a genuine need for housing. The court ordered an expert assessment to determine whether the house was necessary for Mrs Y given her resources (a survivor's pension of €800 per month). If the assessment concludes that it is, the usufruct will be maintained until Mrs Y's death or remarriage; otherwise, an annuity or lump sum may be fixed.

This reasoning marks a shift: previously, courts almost systematically granted conversion to protect the heirs. Now, the judge first checks whether deprivation of the home would be a disproportionate interference with the spouse's private life.

What this means for you — in practice

This decision has major implications for married or civil partnership couples. If you own your main residence and want your spouse to stay there after your death, a donation between spouses is not always enough: it must be tailored to your family situation.

Take an example: you live in Montigny-lès-Metz in a house worth €300,000, and you have two children in common with your spouse. If you leave them their reserved share (each 1/4, i.e. €75,000), the disposable portion is €150,000. You can grant your spouse the usufruct of the whole property: depending on their age, this may be compatible. But if you have children from a different relationship, be careful! Their reserved share may be larger.

If you are the surviving spouse and heirs contest your usufruct, you must prove that the home is essential to your daily life. Gather your tax assessments, proof of rent (if you would have to move), and any document showing your attachment to the place of residence.

Finally, this case law also concerns you if you are a forced heir: you can challenge an excessive donation, but expect the judge to examine the spouse's personal situation. Conversion into an annuity is no longer automatic.

Four tips to avoid this type of dispute

• Draft a 'graduated' donation between spouses: instead of a general usufruct, limit the usufruct to the main residence and its contents. This reduces the risk of encroaching on the reserved share.
• Use the mechanism of the lifetime right to reside: Article 764 of the Civil Code allows the surviving spouse to benefit from a lifetime right to reside, which does not count towards the reserved share calculation. Perfect for couples without children from a first marriage.
• Include a renunciation clause: in the donation, stipulate that the spouse may renounce the usufruct if the heirs pay compensation. This secures both parties.
• Take stock of your assets: before signing, have a notary assess the value of your assets and your spouse's age to ensure the usufruct does not exceed the disposable portion.

Further reading: related case law and developments

This decision follows a trend started by the Court of Cassation in 2021 (judgment No. 19-25.432) which had already refused the systematic conversion of usufruct into an annuity. Since then, trial judges examine each case individually. In 2023, the Paris Court of Appeal ordered conversion for a spouse who owned a second home, but maintained usufruct for the main residence. Here, Versailles goes further by requiring a psychological and social assessment.

In the future, we can expect the protection of the surviving spouse to be strengthened, especially for older couples. The legislature may even amend Article 764 to extend the lifetime right to reside to spouses in a second marriage. In the meantime, caution remains advisable.

Frequently asked questions

1. What exactly is a donation between spouses? It is a notarised deed by which one spouse gives to the other, for the event of death, the maximum possible rights over their estate (usufruct, full ownership, or a choice between several options).
2. Can I lose the usufruct if my stepchildren contest? Yes, if the donation encroaches on their reserved share. But since this judgment, the judge will first check whether the home is indispensable to you. If so, they may maintain the usufruct.
3. What is the cost of this procedure? Lawyer and expert fees can range from €2,000 to €8,000 depending on complexity. A preventive consultation with a notary costs between €150 and €300.
4. Does the civil partnership (PACS) apply? Yes, civil partners can also make a donation between partners, but the rules on reserved shares operate differently (unless there are common children).
5. What if my spouse dies without a donation? You automatically benefit from a lifetime right to reside in the family home, but only if you were married. No protection for civil partners or cohabitants.

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 →