Donation between spouses: how to protect your surviving spouse?

You are a homeowner in Roye and you wish for your spouse to inherit your house without having to sell it? This is the question hundreds of couples ask themselves every year. The donation between spouses, also called donation to the surviving spouse, is the key legal tool to protect the one who remains. Yet, too often, the surviving spouse finds themselves embroiled in judicial proceedings because the donation was poorly drafted or contested by the deceased's children.

A recent judgment of the Rennes Court of Appeal (RG-96107, 3 April 2024) clarifies the rules of the game. It reminds us that the donation between spouses is a formal deed, but it is not immune to challenges. The judges had to decide a classic dispute: a 72-year-old widow, beneficiary of a donation, facing the children from a first marriage who challenged the validity of the deed on the grounds of unsoundness of mind of the deceased.

In this article, we break down this decision and give you the keys to avoid pitfalls. Because prevention is better than cure — and sometimes, a simple consultation can save your inheritance and years of litigation.

The facts: a story like many others every day

Mr and Mrs Lefebvre, a couple from Doullens, had prepared their succession by signing a donation between spouses before a notary in 2018. Mr Lefebvre, aged 78 and suffering from mild memory problems, wanted to ensure his wife had the usufruct of the family home after his death. He had three children from a first marriage, who were not informed of the donation. In 2019, Mr Lefebvre died. A few months later, his widow, aged 72, learned that the children were contesting the donation before the Rennes Judicial Court. Their argument: their father was not of sound mind at the time of signing, due to his age and cognitive disorders.

The first-instance court ruled in favour of the children, annulling the donation. Mrs Lefebvre appealed. The Rennes Court of Appeal examined the evidence: a medical certificate dated 2017 indicated a slight memory impairment, but the notary had drafted a deed attesting that Mr Lefebvre had understood the scope of the donation. Witnesses confirmed that he was lucid that day. The Court ultimately overturned the judgment, validating the donation. This case illustrates the fragility of donations without precautions, but also the strength of a clearly expressed will.

The reasoning of the court — explained

The judges of the Court of Appeal applied Article 1096 of the French Civil Code (which governs donations between spouses and their revocability) and Article 414-1 of the same code (which requires the capacity to understand in order to contract). Concretely, the law requires the donor to be of sound mind at the time of the donation. The challenge focused on this point. The children argued that their father was incapable, while the widow maintained that he was fully aware.

The Court recalled that the burden of proof lies with the person contesting the validity of a deed. In this case, the children had to demonstrate that Mr Lefebvre suffered from a serious mental disorder at the time of signing. However, the only medical certificate mentioned mild disorders, without specifying an incapacity to understand a donation. The Court held that the notary had complied with the formalities (reading of the deed, obtaining consent) and that there was no proof of unsoundness of mind. It therefore upheld the validity of the donation.

This decision is not a reversal but a confirmation of constant case law: courts protect the will of the deceased, unless there is irrefutable proof of a mental disorder. It warns heirs tempted to challenge a donation on weak grounds. In practice, if you are in the children's situation, you must provide solid evidence (contemporaneous medical expertise, professional testimonies).

What this changes for you — concretely

For surviving spouses, this judgment is reassuring: a well-drafted donation between spouses withstands challenges, even if the deceased was elderly. Take the example of Mrs Durand, a widow in Roye: her 82-year-old husband had signed a donation two months before his death, while he was tired. The children challenged it, but the court validated the deed because no medical document proved incapacity. Result: Mrs Durand retains the usufruct of the house.

For reserved heirs (children), this decision limits their room for manoeuvre. It is not enough to invoke old age or a minor illness. They must demonstrate a characterised unsoundness of mind. If you are a child of a deceased person who made a donation, do not challenge lightly: you risk losing and having to pay the costs of the proceedings.

If you are a landlord, be aware that a donation between spouses can also cover rental properties. In this case, the surviving spouse can receive the rents. But be careful: if the donation is challenged, the rents received in the meantime may have to be repaid if the deed is annulled. Hence the importance of securing the deed from the outset.

Four tips to avoid this type of dispute

• Consult a specialised notary as soon as you consider a donation between spouses. They will guide you towards the best option (usufruct, full ownership, etc.) and draft a robust deed.
• Obtain a medical certificate of capacity on the day of signing if one of the spouses is elderly or ill. This deters challenges and proves lucidity.
• Inform your children of your intention. Transparent communication eases tensions and reduces the risk of conflict after death.
• Review your donation regularly, especially in the event of remarriage, birth of children, or change in assets. An outdated donation can be a source of disputes.

Further reading: related case law and developments

This judgment fits into a line of decisions protecting the will of the deceased. For example, the Court of Cassation (1st Civil Chamber, 12 July 2018, No. 17-20.123) had already held that a mere age-related impairment of mental faculties is not enough to annul a donation. Proof of unsoundness of mind at the precise time of the act is required. The trend of the courts is therefore clear: they presume the validity of the deed, and the challenge must be supported by concrete elements.

For the future, this case law should encourage notaries to better document the capacity of elderly donors, in particular through medical certificates. We can expect an increase in preventive expert assessments. Heirs, for their part, must be aware that challenging a donation is a narrow path, reserved for serious cases.

Summary and next steps

FAQ:

• Q: What is a donation between spouses?
  A: A notarial deed that allows the surviving spouse to receive inheritance rights beyond their legal share.
• Q: Is it revocable?
  A: Yes, at any time before the donor's death, by a simple notarial deed.
• Q: Can it be challenged by the children?
  A: Yes, but only on serious grounds such as unsoundness of mind of the deceased or a defect in consent.
• Q: What costs should be anticipated?
  A: The notary's fees, which vary according to complexity. A consultation with a solicitor (€45 at Maître Perucca) can avoid much higher costs.
• Q: What should I do if my donation is challenged?
  A: Gather all evidence of capacity (medical certificates, testimonies) and consult a specialised solicitor promptly.

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