Key Points: The Donation au Dernier Vivant
The donation au dernier vivant is a donation of future assets (biens à venir): the donor gives nothing at the time of signing. Until death, they remain free to sell, give or encumber any asset. It is a statutory exception to the prohibition on pacts over future successions.
It is freely revocable at any time, without reason, by the donor — silently, by notarial act, or by will. In case of divorce, it is revoked automatically (C. civ. Art. 265). Mutual donations require two separate instruments.
In the presence of descendants, the surviving spouse can receive up to the quotité disponible spéciale entre époux (C. civ. Art. 1094-1), which is wider than the ordinary statutory entitlement. Without descendants, a donation is often superfluous since the survivor already inherits everything.
The donation classically delegates three options to the surviving spouse: (1) full usufruct of the entire estate; (2) full ownership within the ordinary quotité disponible; (3) a mixed combination of part-ownership and part-usufruct. The survivor chooses at the donor’s death.
Critical IFI distinction: statutory usufruct (C. civ. Art. 757) splits the IFI between usufructuary and bare owner using the CGI Art. 669 scale. Contractual usufruct from a donation or testament makes the usufructuary liable for IFI on the full property value (CGI Art. 968). This difference can be decisive in large estates.
The surviving spouse cannot cumulate a donation and their statutory rights: gifts are imputed against statutory entitlements (C. civ. Art. 758-6). The donation is useful only where it gives more than the law already provides.

What a Donation au Dernier Vivant Is (and Is Not)

A donation au dernier vivant is a gift of assets that the donor does not yet own specifically at the time of making the gift. The donor commits, as a testamentary disposition, to leave specified rights to their spouse at death. Until the donor dies, nothing changes: they retain full ownership of all their assets and can sell, donate or encumber any of them. The donation does not prevent the donor from disposing of assets during their lifetime — the surviving spouse takes only what remains at the date of death.

French law normally prohibits pacts over future successions (agreements purporting to dispose of an estate that has not yet opened). The donation entre époux de biens à venir is an explicit statutory exception, validated by a combination of legislation and, since 1807, jurisprudence for donations made during marriage. It must be in notarial form (C. civ. Art. 931 — a handwritten olographic will is possible for a legacy to a spouse, but not for a donation au dernier vivant).

Because it takes effect only at death and contains no present transfer, the instrument is in practice closer to a testamentary legacy than to a donation. Courts treat it as such for the purposes of imputation and reduction rules.

Revocability

The donation de biens à venir is freely revocable at any time, without any reason, by the donor alone (C. civ. Art. 1096). The right of revocation cannot be waived — it is of public order. Revocation may be:

  • Express: by notarial act or will;
  • Tacit: by any act or fact demonstrating unequivocally the donor’s intention to revoke — including making a later testament whose provisions are incompatible with the earlier donation, or alienating the specific asset(s) given. The court determines whether tacit revocation has occurred on a case-by-case basis.

In case of divorce, the donation is revoked automatically by operation of law (Art. 265 al. 2), unless the donor-spouse expressly maintains it (a rare provision that requires specific drafting). Mutual donations each require a separate act and are each independently revocable: spouses cannot make a single conjoint instrument (C. civ. Art. 968 on testamentary dispositions applies analogously).

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Scope: When the Donation Is Relevant

In the presence of descendants, the statutory entitlement of the surviving spouse is limited: one-quarter in full ownership where non-joint children exist, or the choice between one-quarter in ownership and the full usufruct of biens existants where all children are joint. The donation au dernier vivant extends these rights, most importantly by making the full usufruct option available even in blended families, and by widening the ownership fraction when the family is small.

The Special Quotité Disponible Between Spouses

In the presence of the deceased’s descendants, Article 1094-1 of the Civil Code allows the donor to leave to the surviving spouse up to the maximum of three options. The donation classically grants the surviving spouse the right to choose freely among these options at the time of the donor’s death. This delegation of choice is the standard form. The choice is personal to the survivor and, absent a contrary provision, transmissible to their own heirs if the survivor dies without having elected.

Option 1
Full Usufruct of the Entire Estate
Scope Usufruct over all the deceased’s assets existing at death, including assets subject to the children’s réserve (the usufruct encroaches on the réserve; children hold bare ownership only).
Advantage over statutory right The statutory usufruct (Art. 757) is available only where all children are joint. Under Art. 1094-1, the full usufruct is available even in blended families.
IFI impact Contractual usufruct: entire IFI borne by usufructuary on full property value (CGI Art. 968). No split with bare owner.
Option 2
Full Ownership within the Ordinary Quotité Disponible
Amount One-half where one child; one-third where two children; one-quarter where three or more children.
Advantage over statutory right The statutory share in ownership is always fixed at one-quarter regardless of the number of children. Art. 1094-1 gives the survivor a larger ownership stake where the family is small.
IFI impact No IFI issue — the survivor owns in full ownership and there is no usufruct.
Option 3
Mixed: Ownership of the Quarter + Usufruct of the Remaining Three-Quarters
How it works The survivor takes one-quarter in full ownership and holds the usufruct over the other three-quarters (which the children hold in bare ownership).
Advantage Combines liquidity from the owned quarter with income from the larger usufruct portion. Useful where the estate contains productive assets (rental property, portfolio).
Cumul available The donor can simultaneously leave the usufruct to the spouse and a specific asset in full ownership to a child or third party, up to the limits of their respective quotités.

The Cantonnement Mechanism

Unless the donor has excluded it, the surviving spouse who takes under a donation au dernier vivant can cantonner son émolument: elect to receive only part of what has been given to them, limiting their share to specific assets of their choice within the donation (C. civ. Art. 1094-1 al. 2). The cantonnement is not a gift to the other heirs — the assets left out of the survivor’s cantonnement simply pass to whoever would take them under the succession in the absence of the donation, without attracting gift duty.

This gives the survivor considerable post-death flexibility: they can take the portfolio and waive the real estate (or vice versa) without being forced to receive assets they cannot manage or that create IFI problems. It also allows them to reduce their taxable estate, limit IFI exposure, and manage succession costs for the second death.

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Planning Point: Cantonnement and the Second Death

A surviving spouse who holds the usufruct of a large estate faces IFI on the full property value (contractual usufruct) and will eventually transmit those assets, triggering succession costs at the second death. By cantonnement, they can proactively limit their usufruct to assets they genuinely need for income or housing, letting other assets pass directly to children at the first death, outside the survivor’s estate at the second. This reduces both ongoing IFI and long-term succession costs.

Donation au Dernier Vivant vs Testament

Both instruments take effect at the donor’s death and allow the same beneficiary options. The practical differences are:

Feature Donation au Dernier Vivant Testament
Form required Notarial (mandatory) Notarial (authentic) or holographic (handwritten, signed, dated)
Revocability Freely revocable, ad nutum Freely revocable, ad nutum
Divorce Revoked automatically (unless expressly maintained) Revoked automatically if made in favour of the ex-spouse
Encroachment on réserve Full usufruct over all assets (including réserve) allowed Same (the donor benefits from Art. 1094-1)
Base for usufruct Includes legacies (Art. 1094-1) — wider than statutory usufruct base Same as donation
Restricting the survivor’s rights Cannot reduce below the law; only a testament can do so Can restrict rights (e.g. deprive of droit viager d’habitation by authentic testament)

One context where a testament is specifically required: to deprive the surviving spouse of their droit viager d’habitation (lifetime housing right), the donor must make an authentic (notarial) testament. A donation cannot serve this purpose.

Why Make a Donation au Dernier Vivant?

Compared with simply relying on the statutory succession rights, the donation adds significant value in specific scenarios:

  • Blended families: Statute gives the survivor only a quarter in ownership when non-joint children exist (no usufruct option). The donation restores the usufruct of the full estate — the most sought-after protection in blended families.
  • Base of usufruct: The statutory usufruct attaches only to biens existants at death (after reducing for legacies to others). The Art. 1094-1 usufruct includes all assets at death including legated assets, making it a materially wider base.
  • Ownership over a larger fraction: With only one or two children, the donation gives the survivor ownership of half or one-third of the estate (rather than the statutory fixed quarter), and can combine that ownership with usufruct over the balance.
  • Siblings’ right of return: Where the deceased leaves no descendants but does leave siblings, certain family assets are subject to a statutory right of return (Art. 757-3). A universal donation to the surviving spouse overrides this right of return, securing the full estate for the survivor.
  • Cumul with ownership and usufruct: A donating spouse can simultaneously leave the usufruct of their entire estate to the survivor and leave the bare ownership of the disposable fraction to a child or third party — a combination the statute does not replicate.
  • Option flexibility: The delegation of choice to the surviving spouse lets them decide at death — when the composition of the estate and their own needs are known — rather than locking in a choice during the marriage.
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IFI Warning: Contractual Usufruct vs Statutory Usufruct

The IFI treatment of the surviving spouse’s usufruct depends entirely on its source. Where the usufruct arises from the statutory rule (C. civ. Art. 757), the IFI base is divided: the usufructuary pays IFI on the usufruct value (e.g. 40% for a survivor aged 61–70) and the bare owner pays on the bare ownership value (60%). Where usufruct arises from a donation au dernier vivant, testament, or marriage contract, CGI Art. 968 does not apply the same split — the usufructuary is taxed on the full property value. For a property worth €500,000 and a survivor aged 61–70: statutory usufruct → survivor pays IFI on €200,000; contractual usufruct → survivor pays IFI on €500,000. In large estates this difference can be decisive.

Reduction Risk: Prior Gifts Reduce the Donation

The donation de biens à venir is treated as a testamentary disposition and ranks after inter vivos donations in the order of imputation for reduction purposes (C. civ. Art. 1094-1). This has a critical practical consequence: if the donor made substantial lifetime gifts to children (or others), those gifts consume the quotité disponible first. The remaining room for the donation to the spouse may be significantly reduced — potentially to zero. The surviving spouse’s actual entitlement depends on what the donor gave away during their lifetime.

The order cannot be changed to give the spousal donation priority over inter vivos gifts (which are irrevocable): this would contradict the irrevocability of those gifts. However, the legal order of testamentary reductions (as between the donation to the spouse and other legacies) is not public order: it is possible to specify in the donation that the spousal right is satisfied before other specific legacies — a precaution worth taking in complex families.

Blended Families: The Non-Joint Children’s Protective Right

Where the surviving spouse’s donation is in full ownership and the deceased had non-joint children, those children can invoke a statutory protective right (C. civ. Art. 1098): they may substitute, for the execution of the ownership donation, an abandonment of the usufruct of the share they would have received in the absence of a surviving spouse. The result is a usufruct/bare-ownership split: the survivor gets usufruct; the non-joint children get bare ownership, and recover full ownership at the survivor’s death. The donor can exclude this right by express clause in the donation — it is not public order.

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Practical Advice: Blended Family Structuring

In a blended family, the choice between the three options under Art. 1094-1 is rarely straightforward. Full ownership under Option 2 may trigger the non-joint children’s Art. 1098 substitution right unless excluded by express clause. Full usufruct under Option 1 avoids that risk but creates IFI exposure on the full estate value. The optimal structure depends on the composition of assets, the relative ages of the survivor and children, and the survivor’s income needs. Always model all three options before the notarial act is signed.

Donations de Biens Présents (Inter Vivos Gifts Between Spouses)

Alongside donations of future assets, spouses may also make donations de biens présents — ordinary inter vivos gifts of assets currently owned. Since 1 January 2005 (C. civ. Art. 1096), these are:

  • Irrevocable where they take effect during the marriage (save for standard grounds of ingratitude or non-performance of conditions);
  • Revocable at the donor’s will if they do not take effect during the marriage (e.g. a réversion d’usufruit in favour of the spouse that only activates at death).

The irrevocability change since 2005 resolved a major source of uncertainty: under the old regime, a spouse who received a gift and then transacted on the asset risked having the transaction unravelled if the donor later revoked the gift. The practical problem now is fiscal: donations of present assets between spouses attract heavy gift duty (not the zero-duty benefit of transmissions at death under Art. 796-0 bis). In practice, most spousal donations take the form of donations of future assets (the donation au dernier vivant) or matrimonial advantages within a marriage contract, both of which avoid live gift duty.

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When to Review or Update a Donation au Dernier Vivant

An existing donation should be reviewed when: (a) the family composition changes (birth of a child, blended family situation develops); (b) the estate composition changes significantly (sale of real estate, major gifts to children); (c) the couple’s matrimonial regime is modified; (d) legislative changes affect the applicable rules (the 2001, 2006 and 2007 reforms substantially altered the landscape — older donations may not align with current law). Any couple whose donation predates 2007 should verify whether it still reflects their intentions.

Summary: When a Donation au Dernier Vivant Is Genuinely Useful
Blended families: restores the full usufruct option that statute withholds when non-joint children exist — the single most common reason to make one.
Small families: where there is one or two children, the donation raises the survivor’s ownership fraction to one-half or one-third (vs the fixed statutory quarter).
Overriding siblings’ right of return: where no descendants exist but siblings hold a right of return over family assets, a universal donation to the spouse overrides that right.
Post-death flexibility via cantonnement: the survivor can choose which assets to take (and what to pass on immediately to children), without that choice constituting a taxable gift.
IFI planning: the contractual usufruct from a donation means the survivor bears IFI on the full value of usufructed assets. Where IFI is a concern, weigh this against the civil law benefits — and consider whether statutory rights already suffice.
Review after 2007: donations made before the 2006–2007 reforms may operate under transitional rules that differ from current law. Any pre-2007 donation should be verified by a notaire.
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Legal Notice. This article is provided for general information and educational purposes only. It does not constitute legal or succession advice. French inter-spousal donations and testamentary planning are highly individual and depend on the family composition, matrimonial regime, estate composition and applicable IFI position. Always consult a qualified French notaire and lawyer before making any decisions.