Selling and Structuring Dismembered SAS Shares: Usufruct, Bare Ownership and Voting Rights

One share, two owners: the démembrement of SAS shares

A French SAS share can be split between two persons: the nu-propriétaire — the bare owner, who holds the right of disposition and, in the eyes of the Cour de cassation, the quality of shareholder — and the usufruitier, who holds the use and the fruits, meaning above all the dividends (C. civ. Arts. 578 and 544). The split is the workhorse of French family-business transmission: parents gift the bare ownership of their shares to the children, keep the usufruct, draw the income for life, and the children take full ownership at the end without a second transfer. It is also a machine with precise rules — on who votes, who subscribes at capital raises, who must sign a sale, and how a price divides between two positions in the same share.

This guide covers the mechanism and its recording in the company's registers, the voting allocation — where the SAS default is not what most articles say it is — the designs the bylaws can and cannot install, the pre-emptive subscription right at capital raises, the sale of a dismembered share and the split or report of the price, the quasi-usufruct route and its risks, and the survival of the split through mergers. For the registers and transfer machinery generally, see our guide to SAS share transfer mechanics; for the tax on the sale itself, our transfer-tax guide.

What the dismemberment is — and how the company records it

Dismemberment divides the attributes of ownership: the usufructuary uses the share and takes its fruits — the dividends whose distribution has been decided — while the bare owner keeps the right to dispose and the certainty of full ownership when the usufruct ends. A usufruit viager runs for the usufructuary's life and dies with them; a usufruit temporaire runs for a fixed term; and where the usufructuary is a legal person, the usufruct cannot exceed thirty years — a public-order ceiling (C. civ. Art. 619; Cass. 3e civ. 7 March 2007, n° 06-12568). Reconsolidation at the end operates by law: no new transfer, no price, only a register update.

Two structural points frame everything that follows. First, who is the shareholder: asked for an opinion, the Cour de cassation answered that the usufructuary cannot be recognised as an associé — that quality belongs to the bare owner alone (Cass. com., avis, 1 December 2021, n° 20-15164). The usufructuary is not powerless — they can have a court appoint an agent to provoke a shareholders' deliberation that directly affects their right of enjoyment (Cass. 3e civ. 16 February 2022, n° 20-15164) — but the shareholder-only prerogatives (standing to seek protective measures, and in principle the appointment of the auditor and, where the collectivity appoints, of the president) sit with the bare owner. Second, the registers carry the split: practice opens a single securities account (fiche) in the bare owner's name, noting that the shares are encumbered with usufruct and identifying the usufructuary — the notation that tells every future buyer, lender and registrar that two consents will be needed. Dismemberment can be created at issuance or, far more commonly, by a notarised gift of the bare ownership with reserved usufruct; either way the company's books must show it.

Who votes: the real SAS default and the designs around it

The SAS does not follow the SA's familiar rule. Art. L 225-110 — usufructuary votes in ordinary meetings, bare owner in extraordinary ones — is an SA provision; in the SAS, in the bylaws' silence, the suppletive rule of C. civ. Art. 1844 applies: the voting rights belong to the bare owner, except decisions concerning the allocation of profits, which belong to the usufructuary. Law 2019-744 added two adjustments: both the bare owner and the usufructuary now have the right to participate in all collective decisions (ending the case law that dispensed with convening the usufructuary outside profit-allocation matters), and the two can agree, by a simple contract between them, that the usufructuary will exercise the vote for decisions other than profit allocation — a faculty the bylaws cannot take away (Art. 1844, al. 3).

Around that base, the bylaws can build almost any allocation — with three untouchable limits (Art. 1844, al. 4): they cannot derogate from either holder's absolute right to participate in collective decisions; they cannot limit or prohibit the parties' own agreement giving the usufructuary votes beyond profit allocation; and they cannot deprive the usufructuary of the profit-allocation vote — a clause subordinating the usufruct's essential prerogatives to the bare owners' will is unlawful (Cass. com. 31 March 2004, n° 03-16694). Inside those walls, the treatise's design menu:

• The accounts-based split — the usufructuary votes everything touching the annual accounts (approval, discharge, allocation of the result including reserves and carry-forward), the bare owner everything else, with dividend-in-shares decisions expressly assigned to the bare owner; a practical middle course that avoids importing the SA's two-assembly formalism;
• The minimal (Dutreil) split — the usufructuary votes only the allocation of the year's profit and carry-forward, the bare owner votes reserve distributions, exceptional proceeds and every other decision: exactly the statutory limitation that conditions the 75 % Dutreil exemption on gifts of bare ownership (CGI Art. 787 B), which family drafting often confines to the shares under the fiscal pact, leaving wider usufructuary votes on the rest;
• All votes to the usufructuary — valid where the participation rights are preserved: the Cour de cassation has admitted a clause giving the usufructuary the vote in all meetings with the bare owners always convened, the usufructuary's vote on a structural operation standing unless shown contrary to the company's interest and cast solely to favour the usufructuary (Cass. com. 2 December 2008, n° 08-13185); a court asked to suspend such an all-votes clause has refused, finding it not manifestly unlawful (CA Paris 2 June 2000);
• Companion clauses — cross-representation arrangements (with the wiser drafting letting a bare owner be represented by another bare owner or a full owner, rather than by the usufructuary whose interests diverge), the usufructuary's information rights, a nu-propriétaire-reserved vote authorising sales of the company's assets, and approval or pre-emption clauses stipulated to apply to cessions of the usufruct or the bare ownership themselves.

The design decision is a real one: the two holders share an interest in the company's health and diverge on almost everything about money — current profit against reserves, distribution against reinvestment, income today against substance tomorrow. The harder cases sit at the boundary (a distribution mixing current profit, asset-sale proceeds and reserves), which is why the drafting should assign the categories expressly rather than trust the default to arbitrate.

Which dismemberment design fits your situation?

Pick your configuration — the check shows the allocation that usually fits and the limit not to cross.

Capital raises: the subscription right belongs to the bare owner

When the SAS raises capital and the existing shares carry a preferential subscription right, the right attached to dismembered shares belongs to the bare owner (C. com. Art. L 225-140). The regime protects both positions through four rules the drafting should not disturb without reason:

• If the bare owner sells the rights, the sale proceeds — or the assets acquired with them — are subject to the usufruct: the usufructuary's position follows the value by subrogation;
• If the bare owner neglects to act, the usufructuary can substitute themselves — subscribing the new shares or selling the rights — so the split's underlying value is not destroyed by inaction;
• The new shares are themselves dismembered between bare ownership and usufruct, extending the original split through the operation;
• Funding is rewarded in full ownership: where either holder pays cash to complete a subscription beyond the rights' own value, the excess shares belong in full ownership to the one who paid — only the portion covered by the rights' value stays dismembered.

The mechanism keeps the family balance intact through funding rounds: the transmission the gift organised is neither diluted away from the children nor silently converted into the parent's full ownership. In a variable-capital SAS — where admissions run without a statutory subscription right — the bylaws should organise the equivalent protections expressly. For the capital-raise machinery itself, see our guides to raising capital and to pre-emptive rights in an SAS.

Selling a dismembered share: two consents, one price, two claims

Who signs. Selling full ownership means selling both rights at once, so both holders consent and both sign — the sale documentation and the ordre de mouvement delivered to the company, whose verification of the signatories' capacity is precisely what the usufruct notation on the account exists to trigger. Each holder can, in principle, sell their own right separately — a buyer can take the bare ownership subject to the running usufruct, or the usufruct for its remaining term — configurations the market rarely wants but estate planning sometimes uses. Where the bylaws say so, the approval and pre-emption clauses apply to those separate cessions of usufruct or bare ownership too; silent bylaws leave the question to interpretation, which is an argument for saying it expressly. And where the holders disagree — one wants to sell, the other refuses — neither can force full ownership onto the market alone: the deadlock is resolved by negotiation, by the buy-out of one right by the other, or not at all.

How the price divides. The Civil Code answers directly: on a simultaneous sale of the usufruct and the bare ownership, the price divides between the two rights according to their respective values — unless the parties agree to carry the usufruct over onto the price (C. civ. Art. 621). The « respective values » can be measured two ways. The fiscal scale of CGI Art. 669 values a life usufruct by the usufructuary's age in decade brackets — 50 % of full value at 51–60, 40 % at 61–70, 30 % at 71–80, 20 % at 81–90 — a table built for tax that parties often borrow for simplicity. An economic (actuarial) valuation prices the actual expected dividend stream over the usufructuary's life expectancy against a discount rate — usually kinder to one side than the table, which is why the choice of method is itself a negotiation. The buyer pays one price and is indifferent to the split; the two sellers divide it under their agreement, each taxed on their own component.

Or no division at all. The Art. 621 alternative — reporting the usufruct onto the price — turns the sale proceeds into the seat of the usufruct: the usufructuary takes the money under a quasi-usufruct, and the bare owner takes a claim. That route deserves its own section, because it moves all the risk to one side of the family table.

Simulate the split: the fiscal scale on your sale price

Enter the price and the usufructuary's age — the calculator applies the CGI Art. 669 scale and flags what the parties can agree differently.

The quasi-usufruct route: the usufructuary keeps the cash — and owes it back

Where the parties agree to carry the usufruct onto the price, the money becomes the object of a quasi-usufruct (C. civ. Art. 587): cash being consumable, the usufructuary may spend or invest it as their own, owing the bare owner restitution of the equivalent at the usufruct's end — in a life usufruct, a claim against the estate at death. The attractions are real: one payment to one recipient at closing, no valuation argument between parent and children on sale day, full liquidity for the usufructuary's remaining years, and a restitution claim that has traditionally reduced the taxable estate.

The risks are equally real, and they all point the same way. Solvency: the bare owner's claim is unsecured by default — a usufructuary who consumes the proceeds leaves an estate that cannot restore them. Valuation: « equivalent » must be defined — nominal amount, indexed amount, or the value of what the proceeds became — and silence breeds litigation between heirs. Tax: the deductibility of restitution claims at death has been restricted — since the 2024 finance law, Art. 774 bis of the CGI denies deduction for restitution debts arising from certain quasi-usufructs over money, with the treatment of price-report configurations depending on conditions that must be checked case by case before anyone relies on the old planning reflex. The drafting answer is a real convention de quasi-usufruit: notarised or at least registered, defining the restitution base and any indexation, organising security where the family situation warrants it (pledge, insurance, earmarked reinvestment), and coordinated with the estate plan and the notary handling the underlying gift. The company, for its part, is out of the story once the sale closes — the quasi-usufruct lives between the former holders, not on the share register.

Mergers, bylaws design, and keeping the split coherent

Structural operations carry the split forward. Where the SAS is absorbed in a merger, the absorbed company's shareholders become shareholders of the absorbing company, and — absent contrary agreement — the respective rights of bare owner and usufructuary are carried onto the shares issued by the absorbing company (ANSA, legal committee, 10 September 2002, n° 3170). The same logic the capital-raise rules apply — the split follows the value — runs through exchanges and reorganisations; the drafting point is to say expressly, in the operation's documentation, how the reported rights sit in the new structure.

The bylaws checklist for a table that expects dismemberment — a family company, a planned transmission, an incorporation with gifts in view: the voting allocation chosen deliberately among the lawful designs; the convening and representation of both holders; the usufructuary's information rights; the application of approval and pre-emption clauses to cessions of usufruct and bare ownership; the asset-sale protection reserving key votes to bare owners; the treatment of dividends in shares; and the coordination clause for capital operations, where the L 225-140 machinery meets the company's own procedures. A pacte between the holders completes the set — vote-shifting agreements (which the bylaws cannot block), consent mechanics for a future sale, the method for splitting a price, and the quasi-usufruct convention pre-agreed rather than improvised at closing. Dismemberment is a thirty-year instrument in corporate time; the structures that age well are the ones that wrote the answers down at the start.

Frequently asked questions about dismembered French SAS shares

This article is for general information only and states French law as published in the sources available at the date shown above. It does not constitute legal or tax advice. Dismemberment sits at the crossroads of company law, family law and tax; the right design depends on the family, the company and the estate plan. Always seek qualified legal advice — and coordinate with the notary handling the underlying gift — before creating, modifying or unwinding a dismemberment of French shares.