Blended Families and Second Marriages: Protecting Everyone

The blended-family problem in French law

The problem a second marriage creates in French succession law is easy to state and hard to solve: the law protects the children of a first marriage so firmly, and gives the second spouse so little by default, that leaving one of them adequately provided for tends to disinherit the other. Two rigid rules collide. First, every child is a reserved heir whose share cannot be given away, whichever union they were born of (Article 913 of the Civil Code). Second, where the deceased leaves at least one child who is not also the survivor's child, the surviving spouse takes only one quarter of the estate in full ownership, and — unlike a spouse with only common children — has no option to take a usufruct instead (Article 757 of the Civil Code).

Those two rules leave a blended family in an uncomfortable position that the couple rarely intends. If nothing is planned, a second spouse who has shared a home and a life for decades inherits a bare quarter outright, while three quarters passes immediately to step-children who may be near-strangers. And there is no way back: children of a prior union have no claim of any kind in the surviving step-parent's own estate, so whatever passes to the survivor at the first death is, from the first-marriage children's point of view, gone (see Article 1527's rationale, below). French law is alive to this tension and offers a set of instruments — the special disposable portion between spouses, the gift between spouses (donation au dernier vivant), the forced-usufruct substitution, the joint donation-partage — but each of them is bounded by the reserve, and each is watched by a protective action the first-marriage children hold in reserve.

The point of this article is to show how those instruments work together, and where their limits lie, so that a couple in a second marriage can protect the survivor without pretending the first-marriage children out of existence — and so the first-marriage children are protected without leaving a widowed step-parent with a quarter of a house and no right to live in it. The rule that no child can be disinherited is not negotiable; the question is how much room the law leaves around it, and the answer, correctly used, is more than most families expect.

Children of a first marriage and their reserve

Children of a first marriage are protected in exactly the same way as children of the current marriage: they are reserved heirs (héritiers réservataires), and a fixed share of the estate is guaranteed to them whatever the will says. French law protects a person's nearest heirs through the reserve — the portion of the estate that must pass to them — because "the reserve being an absolute right in the estate, it is impossible to disinherit a reserved heir completely" (Article 912 of the Civil Code). Whatever is not reserved is the freely disposable portion (quotité disponible), the only part a person can direct elsewhere by gift or will (Article 912, paragraph 2).

For children, the size of the reserve depends on how many there are. Gifts and legacies may not exceed one half of the estate where the deceased leaves one child, one third where there are two, and one quarter where there are three or more (Article 913 of the Civil Code). The reserve is the mirror image of those figures.

Nothing in this scheme distinguishes a child by the union they were born of. For the purpose of the reserve, "children" means all the descendants of the deceased (Article 913-1 of the Civil Code), and a child of a first marriage counts towards the fraction and takes a reserved branch-share on exactly the same footing as a child of the second. What fixes the fraction is the number of branches (souches) at the first degree; where a child has died before the parent and is replaced by their own children through representation, the freely disposable portion is still worked out by reference to the number of children at the first degree, not the larger head-count of grandchildren (Article 913-1). Three children — one from a first marriage, two from a second — therefore produce a three-quarters reserve, divided into three equal branch-shares, and a freely disposable quarter.

Two consequences follow, and both drive the planning. The first is that the disposable portion is the outer limit of what a second spouse can be left in full ownership at the children's expense: with three children between the two unions, only a quarter of the estate can be redirected to the survivor outright, whatever the couple would prefer. The second, and the one families most often miss, is that the reserve of a first-marriage child cannot be recovered later from the step-parent. A child who is not the child of both spouses has no succession rights whatever in the surviving step-parent's estate; deprived of any claim there, they have no means of recovering their parent's assets once those assets have passed to the survivor (this is the very gap the action en retranchement exists to close, discussed below). Everything therefore turns on the first death — on how much reaches the survivor, in what form, and whether it can be cut back.

What a second spouse inherits

By default — with no gift, no will and no adjustment to the matrimonial regime — a second spouse in a blended family inherits little. Where the deceased leaves at least one child who has no filiation link to the surviving spouse, the survivor takes the full ownership of one quarter of the estate (Article 757 of the Civil Code), and the child or children take the remaining three quarters. That is the whole of the spouse's inheritance right in this situation.

The contrast with a first, unblended family is the crux of the difficulty. Where all the children are the children of both spouses, the survivor may choose, personally, between the usufruct of the whole existing estate and the full ownership of one quarter (Article 757); if they do not answer a written request to choose within three months, or die before choosing, they are deemed to have taken the usufruct (Articles 758-3 and 758-4). In a blended family that choice disappears. "To avoid conflict, the surviving spouse has no option for usufruct" (Article 757): the legislator deliberately withheld it, unwilling to leave a surviving spouse as usufructuary by operation of law over property whose bare owners are the children of a prior union — because a lifelong usufruct in the hands of a step-parent would tie up the first-marriage children's inheritance for decades.

The default therefore protects the first-marriage children at the second spouse's expense, and it is severe. A quarter in full ownership of a couple's assets may be a quarter share of the family home held in undivided ownership (indivision) with step-children, with no right to occupy the rest and no income from it. Two limited statutory cushions exist but neither solves the problem. A surviving spouse who is in need at the date of death may claim a maintenance pension (pension alimentaire) from the estate; the right is mandatory and must be claimed within a year, and it can supplement the spouse's inheritance or apply even where the spouse has been left out (Article 767 of the Civil Code). And where the survivor is left a gift that turns out to be worth less than their legal entitlement, they may claim the shortfall, though never so as to receive more than the special disposable portion allows (Article 758-6). Neither of these turns a quarter into security. That is what the planning tools in the sections below are for.

The special disposable portion between spouses

French law gives married couples a lever that is not available to anyone else: an enlarged disposable portion reserved for gifts between spouses. A spouse who benefits from a gift between spouses enjoys a "special disposable portion between spouses" (quotité disponible spéciale entre époux) that lets the deceased benefit the survivor more generously, in the presence of reserved heirs, than a stranger to the estate could ever be benefited (Article 1094-1 of the Civil Code). The usual vehicle is the gift between spouses, commonly called a donation au dernier vivant — a gift, revocable during the marriage, that takes effect only at the first death and lets the survivor choose, then, how to take it.

In the presence of children — whether or not they are children of the marriage — a spouse may leave the other, at their election, one of three portions (Article 1094-1):

For a blended family this is transformative, because it restores the very thing the default rule withheld. Where there are children of a previous union, the gift between spouses is "particularly valuable", because it lets the survivor take either more extensive rights in full ownership, or a usufruct over the whole estate, or a mixture of ownership and usufruct — recalling that, without any such gift, the survivor has only the quarter in full ownership, the legislature having refused to make a step-parent usufructuary of property whose bare owners are the deceased's children from an earlier union (Article 1094-1). The one option the law forbids in a step-family by default becomes available the moment the couple signs a gift between spouses.

There is an internal logic worth understanding. A surviving spouse can never receive more than a stranger could in full ownership — their full-ownership rights are capped at the ordinary disposable portion, or at the quarter — but they can receive more in usufruct: where the spouse takes the largest gift (a quarter in full ownership plus three quarters in usufruct, or the whole in usufruct), that usufruct burdens the descendants' reserve, which they will then recover only in bare ownership (Article 1094-1). The children keep their reserved fraction, but they hold it as bare owners for the survivor's lifetime and recover full ownership, free of inheritance tax, on the survivor's death. The choice among the three options is made only at the first death, in an option deed usually received by the notaire, because the best answer depends on the number of children and on the survivor's needs (Article 1094-1); with a single child the half in full ownership is the strongest, while from two children the quarter-plus-usufruct combination is usually the most valuable.

The right to limit the gift: cantonnement

The gift between spouses is a ceiling the survivor may decline to reach. Unless the deceased has stipulated otherwise, the surviving spouse may confine their emolument (cantonnement) to part only of the assets given to them, leaving the surplus to the children (Article 1094-1, paragraph 2). This lets a survivor who does not need everything take, say, the usufruct of the home and a defined fund, and release the rest to the first-marriage children at once. Crucially, the code provides that this confinement is not treated as a gift made by the survivor to the other heirs who receive the released part; the assets they take by the effect of the survivor's cantonnement are deemed transmitted directly by the deceased, and taxed on the parent-child relationship rather than as a gift between step-relations (Article 1094-1, paragraph 2). In a blended family, where a transfer from a step-parent to a step-child would otherwise be taxed at 60%, that is a decisive advantage.

The action en retranchement

Because the couple can also enlarge the survivor's position through the matrimonial regime — a full-community regime with attribution of everything to the survivor, an unequal-shares clause, a préciput — French law gives the children who are not the children of both spouses a specific weapon to stop that route being used to defeat their reserve: the action to cut back (action en retranchement). The advantages a spouse draws from the clauses of an agreed community are not, in principle, treated as gifts (Article 1527 of the Civil Code); between spouses with only common children they escape both collation and reduction. But where there are children who are not issue of both spouses, that immunity is removed.

The mechanism is precise. Where the deceased had children not born of the union with the surviving spouse, and the survivor benefits from a matrimonial advantage, those children would otherwise be squeezed out of the estate — and, having no succession rights in the surviving step-parent's own estate, would have no way of recovering their parent's assets. To protect them, Article 1527 gives an action by which everything given to the survivor beyond the special disposable portion of Article 1094-1 is without effect as against them (Article 1527, paragraph 2). The matrimonial advantage, to that extent, is presumed to be a gift and becomes reducible like any other liberality. The reduction operates in value (en valeur), not by clawing back the assets themselves (Cour de cassation, first civil chamber, 19 December 2018, no. 18-10244).

The arithmetic follows the special disposable portion. The matrimonial advantage is measured as the difference between what the survivor receives under the marriage contract — the whole community, or half plus the assets taken by préciput, for example — and what they would have received had they been married without a contract, under the ordinary community reduced to acquests (Article 1527, paragraph 2). That advantage is added back notionally to the existing assets; if, after imputation, the survivor's rights exceed the strongest permitted portion (a quarter in full ownership and three quarters in usufruct), the excess is cut back. The non-common children's reserved rights then bear on three quarters in bare ownership only: the action does not touch the survivor's usufruct, but recovers the bare ownership. Mere gains from the spouses' joint work and from savings on their respective incomes, however unequal, are not counted as an advantage made at the expense of children of another bed (Article 1527, paragraph 2).

The action is normally exercised at the death of the parent of the non-common children. But those children may renounce in advance to claim the reduction at that first death (Article 1527, paragraph 3) — a provisional renunciation only, by which they undertake not to sue during the survivor's lifetime, so the survivor keeps the advantage for life while the children retain the right to cut it back after the survivor's own death. To protect them in the meantime, they are granted a legal mortgage over the immovables as of right and may require, notwithstanding any contrary stipulation, an inventory of the moveables and a statement of the immovables (Article 1527, paragraph 3). This advance renunciation must take the same solemn form as a renunciation of the ordinary action to reduce: a specific authentic deed drawn by two notaires and signed separately by each renouncer (Articles 929 and 930).

The forced-usufruct substitution (Article 1098)

A second, narrower protection sits alongside the action en retranchement and applies where a second spouse has been left a gift in full ownership within the ordinary disposable portion. Article 1098 lets each child who is not issue of both spouses convert that ownership into a usufruct, so the children recover full ownership on the survivor's death. It is a safety valve for the specific case where a full-ownership gift to a step-parent would otherwise strip the first-marriage children of their inheritance permanently.

The rule is drawn tightly. Where the gift was made within the limits of the ordinary disposable portion in full ownership — and not where the disposer opened to the spouse the choice among the three special portions of Article 1094-1 — each child who is not issue of both spouses has, as far as their own share is concerned, and absent a clear and unequivocal contrary wish of the disposer, the faculty to substitute for the performance of that gift the abandonment of the usufruct of the succession share they would have taken had there been no surviving spouse (Article 1098 of the Civil Code). The effect is that the first-marriage children recover, on the death of the usufructuary, the full ownership of the assets in their parent's estate: the survivor's ownership gift is downgraded, at the child's election, to a life usufruct.

A worked example from practice makes it concrete. A man dies leaving two children, A and B, of his first union; his second wife, who survives him, opts for the disposable portion of one third (there being two children). A and B decide to substitute for that gift the abandonment of the usufruct of the share they would have taken absent a surviving spouse — one half each — so that the second wife ends up with the whole estate in usufruct only, and the children recover the full ownership at her death (Article 1098). The two protections are complementary: the action en retranchement polices matrimonial advantages that overshoot the special disposable portion, while Article 1098 lets non-common children convert an in-ownership gift into a usufruct so that the family assets return to the bloodline in the end.

Using a donation-partage conjonctive

The instruments above operate at death. A blended family can also act during the couple's lifetime, and the tool built for exactly this situation is the joint donation-partage (donation-partage conjonctive), which lets two parents make a single, combined gift-and-division to children of different unions (Article 1076-1 of the Civil Code). Conscious of the multiplicity of blended families, French law allows, through the joint donation-partage, the allotment of children of different beds in one deed (Article 1076-1).

The mechanism is a single instrument that houses two gifts. The joint donation-partage lets parents together give and divide their assets, combining two gifts into one confused mass of gifted property and a single division, all in the same deed (Article 1076-1). The rules then differ according to who is allotted. Where the deed benefits only common children, it offers great flexibility: a child may receive common property, personal property (biens propres) of either parent, or a mixture. Where it benefits both common and non-common children, the allotment of a non-common child is constrained: their lot may be composed of the personal property of their own parent, and — if the spouses are married under a community regime — of common property, but in that case only the parent who is that child's author has the status of donor (Article 1076-1). The other spouse must merely consent to the gift, to satisfy the rule of joint management of community assets (Article 1422 of the Civil Code), without becoming a co-donor. Because the consenting spouse is not a co-donor, the gift to the non-common child is taxed in the direct line rather than at the 60% rate that applies between unrelated persons. A non-common child, importantly, can never be allotted the personal property of their step-father or step-mother (Article 1076-1).

Two features make it worth the complexity. The first is valuation. Like any donation-partage, the assets given and divided are valued at the day of the gift rather than at the donor's death, provided every child has been allotted in the deed — which delivers legal certainty in a setting as complicated as a blended family (Article 1077-2). The second is timing of any challenge. For the non-common children, the action to reduce for infringement of the reserve opens at the death of their own parent; for the common children it opens only at the death of the survivor of the donors (Article 1077-2 and following). And because it is a donation-partage, the gift is not subject to collation (rapport). Used well, the joint donation-partage lets a couple settle the position of every child of every union in one deed, at a fixed value, and reduce the scope for the disputes that blended-family estates otherwise generate.

Practical protections

No single instrument protects everyone in a blended family; the answer is almost always a combination, chosen for the particular mix of children, assets and priorities. The building blocks below are the ones French law makes available, and the art is in fitting them together so the survivor is secure and the first-marriage children's reserve is respected rather than fought over.

Around these sits the ordinary machinery of the reserve. If a gift or advantage does overshoot, the reserved heirs — including the first-marriage children — can bring the action to reduce, which does not operate automatically and must be claimed (Article 920 of the Civil Code); and a child who is content with the arrangement can renounce that action in advance in a formal deed (Article 929). The single most important practical point is that all of this has to be decided and documented before the first death, with a notaire who has seen the whole family picture — because after the death the options narrow to whichever protective action a disappointed child chooses to bring.

Frequently asked questions about blended families and second marriages in France

Do step-children inherit in France?

No — not from a step-parent by law. A child who has no filiation link to the surviving spouse has no succession rights in that step-parent's estate, and cannot recover assets that have passed to the step-parent from the deceased parent (this is why Article 1527 gives non-common children the action en retranchement). Step-children inherit from their own parent, where they are reserved heirs like any other child (Article 913 of the Civil Code), but they are not heirs of a step-parent unless the step-parent adopts them or leaves them something by will within the disposable portion.

How do I protect my second spouse in France?

The core tool is a gift between spouses (donation au dernier vivant), which opens the special disposable portion and lets the survivor take, at their choice, the full ownership of the ordinary disposable portion, a quarter in full ownership plus three quarters in usufruct, or the whole estate in usufruct (Article 1094-1 of the Civil Code) — including the usufruct over everything that the default rule denies a step-parent. It is often combined with a right of cantonnement (Article 1094-1, paragraph 2) and, where the family agrees, with a joint donation-partage for the children (Article 1076-1).

What is the action en retranchement?

It is the action French law gives to children who are not the children of both spouses to cut back a matrimonial advantage (or gift) that leaves the survivor more than the special disposable portion of Article 1094-1 allows: everything given beyond that portion is without effect as against them and becomes reducible, the reduction operating in value (Article 1527, paragraph 2; Cour de cassation, first civil chamber, 19 December 2018, no. 18-10244). It is normally exercised at the death of the children's own parent, though they can renounce in advance to defer it to the survivor's death (Article 1527, paragraph 3).

Can my children from a first marriage be disinherited?

No. Every child is a reserved heir, and the reserve is an absolute right, so a child cannot be completely disinherited (Article 912 of the Civil Code). A first-marriage child is reserved on the same footing as any other child: half the estate is reserved with one child, two thirds with two, three quarters with three or more (Article 913). Only the freely disposable portion can be directed to a second spouse or anyone else, and gifts that encroach on the reserve can be cut back by the action to reduce (Article 920).

What is a donation au dernier vivant worth in a blended family?

It is worth a great deal, because it gives the survivor an option the default denies. Without it, a spouse with a step-child takes only a quarter in full ownership and cannot elect a usufruct (Article 757 of the Civil Code). With it, the survivor can take the whole estate in usufruct, or a quarter in full ownership plus three quarters in usufruct, or the full ownership of the ordinary disposable portion (Article 1094-1) — keeping the use and income of the home and the rest of the estate for life, while the first-marriage children hold bare ownership and recover full ownership tax-free on the survivor's death.

Can I use my matrimonial regime to leave everything to my second spouse?

Only up to a point in a blended family. A community regime can attribute assets to the survivor, and between spouses such advantages are not treated as gifts (Article 1527 of the Civil Code). But any child who is not issue of both spouses can invoke the action en retranchement to cut the advantage back to the special disposable portion (Article 1527, paragraph 2), so the regime cannot be used to defeat a first-marriage child's reserve. A change of regime is made by notarial deed in the family's interest, and adult children are notified and may oppose it (Article 1397).

How our French lawyers help with blended families and second marriages

Protecting everyone in a second marriage is a drafting problem before it is a family one, and it has to be solved while both spouses are alive. We advise couples and their children on how a blended-family estate will actually devolve under French law, what a second spouse would take by default, and how to combine a gift between spouses, cantonnement, the special disposable portion, Article 1098 and a joint donation-partage so the survivor is secure and the first-marriage children's reserve is respected — with the action en retranchement understood and, where appropriate, renounced in advance rather than litigated after a death.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. How French inheritance law applies to a second marriage depends on the family, the children of each union, the assets, their location, the matrimonial regime and any gift or will. Contact our French lawyers for advice on your situation before acting.