Gift to the Last Survivor: Securing Your Spouse's Future After Death

Marie-Louise and Jean have lived in their villa in Mandelieu-la-Napoule for twenty years. Jean, the owner of the property, has two children from a first marriage. Marie-Louise worries: 'If Jean passes away first, what will become of me?' This fear is shared by thousands of couples. The donation between spouses, also known as the gift to the last survivor, is the legal tool designed to address this. But its application sometimes raises conflicts, as illustrated by the case decided by the Grenoble Court of Appeal on 10 August 2024.

Have you ever wondered what the law provides to protect your spouse? Without any special provision, the surviving spouse only inherits in second place, behind the children. The donation between spouses reverses this logic: it allows the spouse to choose, at the time of death, between usufruct (the right to live in and receive rent from the property) or a quarter of the full ownership, or even more depending on the family situation. But be careful: this mechanism has its limits, and the deceased's children can challenge it.

In this decision, the Grenoble court clarified the contours of this protection, recalling that the surviving spouse is not an heir like any other. It resolved a typical dispute – a conflict between a widow and children from a first marriage – and provided essential clarifications for all couples. Analysis.

The facts: a story that happens every day

Mr X, a retired man from Grasse, had remarried Mrs Y after his divorce. He had two adult children from his first union. Concerned to protect his new wife, he had signed a donation between spouses (gift to the last survivor) before a notary in 2010. This document offered her the option, at the time of death, to choose between usufruct of the entire estate or full ownership of a quarter of the assets. Upon his death in 2022, Mrs Y declared her option for universal usufruct, which allows her to continue living in the Grasse house and receive income from investments. But the deceased's children contest: they believe the donation prejudices them because they will only be able to dispose of their reserved share (the minimum portion guaranteed by law) upon the death of their stepmother.

The dispute was brought before the Grasse Judicial Court, then on appeal in Grenoble. The children argue that the gift to the last survivor should not deprive them of their rights – they demand that Mrs Y be reduced to a quarter in usufruct only, and not total usufruct. Mrs Y, for her part, argues that her husband clearly expressed the intention to protect her, and that the law authorises her to choose universal usufruct.

The Grenoble Court of Appeal had to decide: to what extent can the donation between spouses limit the children's reserved share? The verdict, delivered on 10 August 2024, confirms the validity of the option taken by Mrs Y, but recalls that the usufruct cannot apply to assets that the deceased had received by prior donation from his own parents. In other words, the protection of the spouse has limits when the assets come from another lineage.

The reasoning of the court — analysed

The Grenoble judges relied on Article 1094-1 of the Civil Code, which governs donations between spouses. This text allows the surviving spouse to opt, at death, for 'usufruct of all assets existing in the estate' or for 'a quarter in full ownership'. This is a crucial choice: usufruct allows enjoyment of the assets without being the owner, while full ownership gives an absolute right over a part.

Why did the court validate Mrs Y's option? Because the deceased had expressly provided for this option in the donation, and the children did not demonstrate that this option deprived them of their reserved share. Indeed, the reserved share (the minimum portion due to children) relates to full ownership, but the spouse's usufruct does not infringe this reserve as long as the children retain the bare ownership (the right to dispose of the asset in the future). The court recalled a fundamental principle: the rights of the surviving spouse are protected by law, and they take precedence over the interests of forced heirs, except in cases of abuse.

However, one point was debated: the assets that the deceased had himself received by donation from his parents. On this point, the court limited Mrs Y's usufruct, because these assets must revert to the children in full ownership, in accordance with Article 1094-1 paragraph 3: 'Usufruct cannot be exercised over assets that the deceased had received by donation from his ascendants.' Thus, even with a donation between spouses, the spouse cannot appropriate everything. The judges thus balanced the protection of the spouse and the rights of the children.

What this means for you — in practice

If you are married and own property in Grasse, Mandelieu-la-Napoule or elsewhere, this decision directly concerns you. The donation between spouses is a powerful tool, but not absolute. Concretely, what can you do? First, know that without a donation, your spouse only inherits a quarter in usufruct if you have children (Article 757 of the Civil Code). With the donation, he or she can obtain total usufruct – which allows him or her to stay in the house without sharing.

Example with figures: imagine a house worth €300,000 in Grasse and financial assets of €200,000, i.e. an estate of €500,000. If you opt for total usufruct, your spouse can live in the house and receive income from investments until his or her death. The children will inherit the bare ownership (about 60% of the value according to the usufruct tables) but cannot sell or occupy the property. If your spouse chooses the quarter in full ownership, he or she becomes owner of €125,000, and you will leave the rest to the children.

If you are a child from a first marriage, you should know that your rights to the reserved share are not extinguished: you retain bare ownership, but you will have to wait until the death of the surviving spouse to dispose of the assets. However, if the assets come from the deceased's family (donations or inheritances), your share may be more strongly protected.

Four tips to avoid this type of dispute

• Plan ahead with a notarial deed. A donation between spouses must be made before a notary. Do not delay: the sooner you draft it, the better you protect your spouse. The cost is modest (a few hundred euros) and saves years of litigation.
• Clarify your intentions. In the deed, specify whether you want your spouse to be able to choose usufruct or full ownership, and on which assets. If you have non-common children, indicate that you are aware of the consequences for their reserved share.
• Make an inventory of your assets. Distinguish assets you received by donation or inheritance from those you acquired. Family assets cannot be burdened with usufruct in favour of the spouse without limit.
• Inform your heirs. Explain the arrangements to your children. Transparency reduces the risk of challenge. If possible, involve them in the discussion to avoid conflicts after your death.

Further reading: related case law and developments

The Court of Cassation has already had occasion to clarify the rights of the surviving spouse. In a judgment of 3 May 2018 (No. 17-14.567), it held that the donation between spouses cannot be unilaterally revoked by the donor, unless there is a clause to the contrary. The current trend is towards strengthened protection of the spouse, in the interest of family stability. However, a recent judgment of the Paris Court of Appeal (2023) limited the spouse's usufruct when the children are from a first marriage, in order to preserve their reserved share. The Grenoble decision follows this balanced line: it confirms the primacy of the deceased's will, but recalls the legal limits. In the future, we can expect judges to continue weighing the interests at stake, favouring negotiated solutions.

In practice: what to do

Checklist to protect your spouse:

1. Consult a notary to draft a donation between spouses. Bring your marriage contract (if any) and a list of your assets.
2. Choose together the option that suits you: total usufruct or quarter in full ownership. You can also provide for a broader option (e.g., usufruct on the main residence only).
3. If you have non-common children, consider a life insurance policy to pay them a capital equivalent to what you are taking away via the donation.
4. Update your donation after each major event (birth, death, divorce).

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