Donation between spouses: protecting the surviving spouse after the Bordeaux ruling

You are a homeowner in Nœux-les-Mines, and you are wondering how your spouse will be protected after your death? This question, many people ask themselves too late. Without a donation between spouses (also called donation to the surviving spouse), the surviving spouse can end up with a reduced share, especially if the deceased had children from a previous union. The ruling handed down by the Bordeaux Court of Appeal on 30 May 2025 reminds us of the essential rules of this protective mechanism. But what exactly is it about, and what should be remembered to avoid family conflicts?

The facts: a story like many that happen every day

In 2020, Mr X died at the age of 78, leaving his wife, Mrs Y, and two children from a first marriage. The couple was married under the regime of community of acquests and had signed, fifteen years earlier, a donation between spouses before a notary. Mrs Y thought she could thus keep the family home in Nœux-les-Mines, but the children contested the deed, arguing that it infringed the available portion (the part of the estate that the law reserves for reserved heirs, here the children).

The dispute first went before the Judicial Court of Béthune, which ruled in favour of the wife. The children then appealed. The Bordeaux Court of Appeal, having jurisdiction over the region, confirmed the validity of the donation between spouses, but specified the respective rights of the parties. The judges notably recalled that the donation between spouses allows the surviving spouse to choose, at the time of death, between different options: the life interest in all the assets, the full ownership of the available portion (generally one quarter in the presence of children), or a combination of the two.

In this case, Mrs Y had opted for the life interest in the house and in a bank account, which allowed her to live there until her death. The children received the bare ownership (the right to dispose of the asset without being able to occupy it). An expert valued the house at €250,000, and after calculations, the rights of each were respected. However, one particular point was debated: the donation between spouses mentioned an option clause for the spouse, but no explicit reservation of life interest, which required interpretation by the judges.

The reasoning of the court — explained

The judges first invoked Article 1094 of the Civil Code, which sets out the framework of the donation between spouses. This text allows one spouse to give to the other, by marriage contract or separate deed, everything that could be given to a stranger, with limits designed to protect the reserved heirs (children, in particular). "In plain language, the legislator intended a balance between the protection of the surviving spouse and the rights of the children," explains Maître Perucca. The Bordeaux judges confirmed that the contested donation respected the available portion, because the value of the life interest did not exceed half of the estate (in the presence of two children, the children's reserved share is 75%, the remaining 25% being free).

Next, the court examined the children's arguments: they claimed that the donation was void because it had not been drafted in sufficiently clear terms. The judges rejected this argument, finding that the deed was clear as to the spouse's ability to choose the life interest. They stressed that the donation between spouses is a solemn deed, but no sacramental formula is required: the essential thing is that the parties' intention is expressed without ambiguity. Finally, the court recalled that the donation between spouses is revocable (unlike a will), which reinforces the spouses' freedom. This decision is in line with consistent case law of the Court of Cassation, which favours the protection of the surviving spouse.

What this changes for you — concretely

If you are a homeowner in Avion or elsewhere, this decision confirms several points for you. Firstly, the donation between spouses is an effective tool to protect your spouse, but it must be properly drafted. Secondly, it offers valuable flexibility: the survivor can choose the most advantageous option at the time of death, depending on their financial and family situation. For example, if you die leaving a house worth €200,000 and €50,000 in savings, your spouse can choose the life interest in the house (about 60% of the value if they are 70 years old) and the full ownership of the available 25%. Ultimately, they would receive much more than the basic 25% without the donation.

But be careful: the donation between spouses is not an absolute protection. If your spouse opts for the life interest, they can live in the property, but cannot sell it without the children's agreement (the bare owners). In case of conflict, a lawyer specialised in family law can help you find an amicable or judicial solution. In the Bordeaux ruling, the parties eventually settled after the judgment, avoiding a long procedure before the Béthune court. If you are in this situation, you should check whether the donation has been signed and, if not, quickly consult a notary to establish it. Remember that the donation between spouses can be revoked at any time, which allows adaptation to changes in family life.

Four tips to avoid this type of dispute

• Sign a donation between spouses as soon as possible: even if you are young, a life accident can happen. This notarial deed costs between €600 and €1,200 and saves you a lot of trouble.
• Clearly state your intentions in the deed: indicate whether you want your spouse to benefit from the life interest, full ownership or a choice. Avoid ambiguous clauses that could be challenged.
• Inform your children of your choice: transparency is often the best prevention of conflicts. Explain to them that the donation between spouses does not disinherit them, but protects their surviving parent.
• Regularly review your donation: a divorce, separation, or change in assets may justify a revocation or a new donation. Consult your notary every five years.

Further reading: related case law and developments

This decision of the Bordeaux Court of Appeal is part of a line of rulings favourable to the surviving spouse. For example, the Court of Cassation, in a ruling of 12 February 2020 (No. 18-26.351), had already specified that the donation between spouses allowed the spouse to choose the life interest even if the deed did not explicitly mention it, as long as the intention was clear. In contrast, the Douai Court of Appeal, in a 2022 ruling, annulled a donation deemed imprecise, emphasising the importance of careful drafting. The current trend is towards maximum protection of the spouse, but with increased scrutiny of the formal validity of the deed. In the future, notaries can be expected to be even more vigilant in drafting donations between spouses, and courts will continue to interpret the spouses' intention broadly.

What you absolutely need to remember

FAQ in 5 questions:

• What is the purpose of a donation between spouses? To give the surviving spouse more rights than the simple legal reserve. Without it, the spouse receives only one quarter in full ownership or the life interest of the whole, but subject to conditions.
• Can I revoke it? Yes, at any time by a simple notarial deed. This is a considerable advantage over a will.
• What happens in case of remarriage? The donation between spouses becomes void if it was not made by marriage contract. It must be renewed with the new spouse.
• Is it valid if we are in a civil partnership (PACS)? No, the donation between spouses is reserved for married couples. PACS partners must use a will or a standard donation.
• What is the time limit to act after a death? The surviving spouse has six months to accept or refuse the donation. After this period, they are deemed to have accepted it.

In summary, the Bordeaux ruling confirms that the donation between spouses is a powerful but technical tool. Do not leave the fate of your spouse to chance. 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 →