The Donation-Partage: Dividing Your Estate in Your Lifetime

What a donation-partage is

A donation-partage is a lifetime gift and a partition rolled into one: you give away assets and, in the same notarial deed, allot them among your heirs, so that each receives a defined lot rather than an undivided share. The Civil Code puts it plainly — "any person may make, between their presumptive heirs, the distribution and partition of their property and rights" (Article 1075 of the Civil Code). It is the principal tool French law offers a parent who wants to organise the transfer of an estate while alive, agree who gets what, and close off the arguments that a straightforward gift or a will can leave open.

Two limits define what can go into the deed. First, a donation-partage can only cover present assets — property already in your patrimony on the day of the gift — and not future or expected assets (Article 1076 of the Civil Code). Second, the recipients must in principle be your presumptive heirs (héritiers présomptifs): it is the succession entitlement of the donees on the day of the deed that counts (Article 1075). In the ordinary case those heirs are your children. The gift and the partition are usually done in a single act, but the Code allows them to be split into two deeds provided the person making the gift takes part in both (Article 1076, paragraph 2). The deed does not have to cover your whole estate — a donation-partage may be partial and bear on only some of your assets (Article 1075-5).

What makes the donation-partage more than a gift with a partition attached is the legal treatment that follows. Because the deed already divides the assets into lots, French law does not treat those lots as ordinary lifetime gifts to be "brought back" (rapport) and re-pooled at your death; the partition you organised holds. It also enjoys a protection an ordinary partition does not: the action for rescission for injury (action en complément de part pour cause de lésion), which lets a co-heir who received too little attack a division, cannot be brought against a donation-partage (Article 1075-3 of the Civil Code). The trade-off is that the deed must respect forced heirship: an unequal donation-partage that leaves a child with less than their reserved share can still be cut back by an action to reduce (action en réduction) at your death, where the existing assets are not enough to make that child up to their reserve (Article 1077-1).

Who can make one, and to whom

Any person may make a donation-partage or a will-partition (testament-partage), whether or not they are an ascendant (Article 1075 of the Civil Code). A married person can give their own separate property alone, but a donation-partage of community or jointly-owned property needs the consent of both spouses (Articles 1422 and 1536). The normal recipients are the children, but the Code opens two special doors. Where the assets given include a business or company shares, a person may in defined conditions allot them to someone who is not a presumptive heir (Article 1075-2) — a way of passing a family business to a chosen successor. And a donation-partage can reach across a generation to grandchildren, which is the transgenerational form discussed below (Article 1075-1). The gift can also be made unequally, so long as no child is left below their reserve; the point of the device is to organise the transfer, not necessarily to divide it in equal parts (Article 1077-1).

How it freezes asset values

The reason most families use a donation-partage rather than a simple gift is that it freezes the value of the assets at the date of the deed. When someone dies, French law reconstitutes the estate on paper by adding back to the property left at death every asset the deceased had given away during their lifetime (Article 922 of the Civil Code), and it does so to check that no reserved heir has been shortchanged. For ordinary lifetime gifts, those added-back assets are valued as at the date of death. For a donation-partage, by contrast, the assets are valued as at the date of the deed for the purpose of working out the reserve and the freely disposable portion (Article 1078 of the Civil Code).

The practical consequence is decisive. If the asset you gave — a flat, a portfolio, a business — has risen in value between the gift and your death, only the child who received it profits from the increase; the gain is not pooled and shared out among the others. The Cour de cassation has confirmed that the assets are to be taken at their real value at the date of the donation-partage, whatever figure the deed itself recited, and used a fresh valuation as at that date to settle a reduction claim between two children (Cass. civ. 4 November 2015, no. 14-23662; Cass. civ. 25 May 2016, no. 15-16160). That freezing is what heads off the most common inheritance dispute of all — one child arguing, years later, that a sibling's lot was worth far more than the deed said.

This is the sharpest point of difference from a simple gift. With a plain donation, the value added back at death is the value at the date of death (in the state the asset was in at the gift), so a child who received an asset that later soared in value can find the whole increase counted against them when the reserve is computed. With a donation-partage that meets the conditions, the figure is locked at the deed date and cannot be reopened. The rule favours the donees in a rising or inflationary market; in a period of stable prices it is broadly neutral, because there is little movement to freeze.

The conditions for the freeze

The freeze is not automatic — it depends on three conditions being met (Article 1078 of the Civil Code). First, all the reserved heirs living or represented at the death of the person who made the gift must have received a lot in the anticipated partition, and must have expressly accepted it. Second, there must be no usufruct reserved over a sum of money in the deed. Third, there must be no agreement to the contrary displacing this method of valuation. Where any of these fails, the assets are valued as at the date of death instead — the ordinary rule. So if one child is left out of the deed, or a child is born after it, the condition that "all" reserved heirs took a lot is not satisfied, and the freeze is lost. That is why, in practice, a well-drawn donation-partage brings every child into the deed and gives each an accepted lot. The tool below shows when the freeze applies to your assets and when it does not.

Ordinary, conjonctive and cumulative forms

A donation-partage comes in more than one shape, and choosing the right one is the first decision a family makes. The ordinary form is a gift-partition by a single parent to the children. But where a couple want to give together, or one spouse has already died, French law offers two further forms — the joint (conjonctive) and the cumulative (cumulative) donation-partage — designed to let both spouses' assets be pooled and shared in one operation (Article 1076-1 of the Civil Code).

The joint (conjonctive) donation-partage lets two parents carry out a gift-partition of their assets together. It combines two gifts into a single merged mass of property, with one partition, all in one and the same deed (Article 1076-1 of the Civil Code). Its central attraction is fiscal: because each child is treated as receiving a share from each of the two parents, the direct-line allowance is applied twice — once against the father and once against the mother — so a child can receive up to €100,000 free of gift tax from each parent (Article 779, I of the General Tax Code). Where the children are allotted unequally as between the father's and the mother's assets, the tax is calculated on each donee's theoretical rights in the merged mass rather than on what they physically receive (Article 1076-1). Although the Code speaks of "the two spouses", commentators accept that a joint donation-partage can be made by parents who are not married.

The cumulative donation-partage is the tool for a surviving spouse. It lets the survivor combine, in a single deed, their own personal assets with the assets that form part of the estate of their predeceased spouse, and share the whole among the children in one partition. It is, in effect, a way of settling the succession of the first spouse to die and organising the survivor's own gift at the same time, so the family is not left holding two overlapping undivided estates. Both the joint and the cumulative forms carry all the ordinary advantages of a donation-partage — the assets are not brought back at death, and their values are frozen at the deed date if every child is allotted (Article 1078).

Donation-partage in a blended family

Blended families are exactly the case the joint donation-partage was reshaped to serve. French law expressly allows a joint (conjonctive) donation-partage to allot children of different unions (enfants de lits différents) in a single deed (Article 1076-1 of the Civil Code), so a couple who each bring children from an earlier relationship can organise one coherent partition rather than a patchwork of separate gifts. That single deed also delivers the security every family wants: where all the children are allotted in the act, the assets are valued at the date of the gift, which brings certainty to a family structure that is otherwise fertile ground for later disputes (Article 1078).

There is, however, a structural rule that shapes how the deed must be built. A child who is not common to both spouses can only be provided for out of the assets of their own parent. Where the couple are married under a community regime, the lot destined for a non-common child can be composed of that parent's separate property and, if need be, of community property — but only the parent who is the child's own ascendant has the status of donor. The other spouse must consent to the gift of any community property, to satisfy the joint-management rule that applies to community assets (Article 1422 of the Civil Code), yet does so without becoming a co-donor. Because the consenting spouse is not a donor, the gift to the non-common child is taxed on the favourable direct-line basis between that child and their own parent.

The consequence is that a joint donation-partage is only truly "joint" as regards the common children; as regards a non-common child it operates as an ordinary donation-partage from that child's own parent alone. The construction has real limits worth knowing before you rely on it: the community regime is rarely the one chosen on a remarriage; a gift of community property by a single donor spouse gives rise to a compensation owed to the community (Article 1437); and, where there is a non-common child, the arrangement generally presupposes at least two common children for the joint form to work at all. Where one spouse has already died, the cumulative form takes over, letting the survivor fold the deceased spouse's estate into the partition. These are technical deeds, and the right structure depends on the exact family and the matrimonial regime. The tool below points to the form that fits your situation.

Transgenerational gift-partition (including grandchildren)

A transgenerational gift-partition (donation-partage transgénérationnelle) lets you skip a generation and gift directly to your grandchildren, in place of your own child. The Civil Code allows a donor to benefit descendants of different degrees, whether or not they are presumptive heirs, so that grandchildren can be provided for in the place of their parent (Articles 1075-1 and 1078-4). The reason a family reaches for it is usually simple: the middle generation, already established in life, does not need the assets, and passing them to the grandchildren transfers wealth to where it is wanted and does so only once.

The device turns on the consent of the intermediate generation. A transgenerational gift-partition is only possible with the agreement of the middle generation: the donor's child, as presumptive heir, must consent in the deed to their own descendants being allotted in their place, whether wholly or in part (Article 1078-4 of the Civil Code). That consent, and the acceptance of the descendants who benefit, must appear in the deed itself (Article 1078-5, paragraph 2). Where descendants of different degrees — children and grandchildren — come together to the same gift-partition, the partition operates by branch (souche) rather than per head, so each branch of the family is dealt with as a unit (Article 1078-6). In practice, all the donor's children need to give their consent and either they or their descendants must receive a lot; otherwise the very benefit of the device — freezing the value of the estate at the date of the gift — is lost.

The freeze applies here too, but under its own conditions. For the transgenerational gift-partition to benefit from the favourable rule that values are frozen at the date of the deed — both in the succession of the donor ascendant and in that of the consenting child — every branch and every descendant of a branch must have received a lot, and there must be no usufruct reserved over a sum of money (Articles 1078-8, paragraph 3, and 1078-9, paragraph 3, of the Civil Code). Where those conditions are met, the assets are treated for the reserve calculation as though the grandchildren had received them by donation-partage from their own parent, and the value can be fixed once and for all at the date of the deed (Article 1078). The transgenerational form can carry the usual clauses — a reserved usufruct, for example — and can be made jointly by both grandparents (conjonctive) or combine the estate of a deceased grandparent with the assets of the survivor (cumulative).

The tax advantage of skipping a generation

Where children and grandchildren are called together to a donation-partage, the duty is worked out according to the relationship between the donor ascendant and each descendant allotted (Article 784 B of the General Tax Code). Each takes the direct-line rate and their own allowance: €100,000 for a child (Article 779, I), €31,865 for a grandchild (Article 790 B) and €5,310 for a great-grandchild (Article 790 D). The structural saving is that a transgenerational gift is taxed only once. Assets a grandchild receives directly from the grandparent are taxed a single time, whereas assets that pass first to the parent and then on to the grandchild are taxed twice. A further, quieter benefit follows at the middle generation's death: the grandchildren's lots are not subject to the fifteen-year look-back (rappel fiscal) in the estate of the consenting parent, because the transfer came directly from the grandparent (Article 1078-4).

The tax and the 2.5% duty

The tax on a donation-partage is, for the most part, the ordinary gift tax (droits de mutation à titre gratuit): each donee is taxed on the lot they receive, at the direct-line rate, after their personal allowance — €100,000 for a child (Article 779, I of the General Tax Code), €31,865 for a grandchild (Article 790 B). In a joint donation-partage the allowance is applied separately on the share each child receives from each parent, so the €100,000 counts twice for a child whose parents both give. There is nothing exotic in that computation; the donation-partage does not carry its own gift-tax rate.

Where the deed becomes distinctive is the partition duty (droit de partage). Partitions of movable and immovable property attract a partition duty — a registration duty or land-registration tax — of 2.50% (Article 746 of the General Tax Code). Its three cumulative conditions are a genuine partition operation, a deed of partition, and a justified undivided ownership between the co-sharers. The duty is levied on the net partitioned assets — the gross assets less the liabilities charged on the undivided mass (Article 747). The 2.50% rate is reduced to 1.1% for partitions following a legal separation, a divorce or the ending of a PACS.

Balancing payments (soulte)

The 2.50% duty matters most where the lots are unequal and a child receives more than their share of the value. To restore the balance, the child who is over-allotted pays the others a balancing payment (soulte) — a cash sum, immediate or deferred, that compensates the inequality of the lots (Articles 826 and following of the Civil Code). Where there is a soulte, the partition is treated as transferring ownership to the extent of that payment, and the sum is taxed at the rate provided for sales according to the nature of the assets on which it bears — not merely at the partition rate — because to that extent the operation is a sale rather than a division. Getting the soulte right, and understanding how it is taxed, is one of the main reasons a donation-partage with unequal lots needs careful drafting.

Reincorporating an earlier gift

A donation-partage can also be used to tidy up gifts already made. Where a parent gave an asset to a child years ago by a simple gift, that gift can be reincorporated into a later donation-partage — folded back into the deed and re-allotted — so that it gains all the advantages of a gift-partition (Article 1078-7 of the Civil Code). These reincorporation agreements are not regarded as fresh gifts between the presumptive heirs, but as a partition made by the person disposing of the assets (Article 1078-3). Reincorporation can even change who ends up with the asset: an asset given long ago to a child can be re-allotted, in the new deed, to a grandchild.

The tax treatment is what makes this attractive. A reincorporation is subject to the partition duty alone — the 2.50% duty — and not to fresh gift tax, even where the reincorporated asset is re-allotted to a descendant of the first donee (Article 776 A, paragraph 2, of the General Tax Code). The duty is assessed on the value of the reincorporated assets as at the date of the reincorporation. So an asset given decades ago can be brought into a new partition, re-allotted, and pass on charged only at 2.50% of its current value rather than at full gift tax. Where the deed also gives new assets on top of the reincorporated ones, gift tax is due on the new assets and only the reincorporated ones take the partition duty.

The anti-abuse rule: gifts under fifteen years old

There is one guard against using reincorporation to dodge tax. Where the reincorporated asset was given by the donor ascendant to their child less than fifteen years before the donation-partage, and it is re-allotted to a descendant of the original donee, gift tax — not merely the 2.50% duty — becomes due, calculated on the relationship between the donor ascendant and the grandchild who now takes the asset (Article 776 A, paragraph 3, of the General Tax Code). The rule exists to stop a parent from giving an asset to a child, taking the favourable parent-to-child rate, and then quickly re-routing it to a grandchild.

Crucially, the rule avoids taxing the same asset twice. To prevent double taxation, the duty already paid on the first gift, in respect of the reincorporated asset, is set off (imputed) against the duty due on that same asset in the donation-partage (Article 776 A, paragraph 3). The Code's own worked example makes the effect concrete: an asset given to a son in 2012 for €480,000, reincorporated and re-allotted to the two grandchildren at a revalued €500,000, attracts grandparent-to-grandchild gift tax when the new deed is done inside fifteen years — but the duty the son paid in 2012 is credited against it, cutting the net duty on the grandchildren's shares to €21,314. Done more than fifteen years after the first gift, the same reincorporation would attract only the 2.50% partition duty — €12,500 on €500,000 (Article 746). Even with the anti-abuse rule in play, the imputation mechanism keeps a transgenerational reincorporation cheaper than making two separate gifts.

Frequently asked questions about the donation-partage

What is a donation-partage?

A donation-partage is a lifetime gift and a partition combined: in one notarial deed you give away present assets and allot them among your presumptive heirs, so each receives a defined lot rather than an undivided share (Article 1075 of the Civil Code). It can only cover assets you already own, and the recipients are normally your children. Unlike a simple gift, the lots are not brought back and re-pooled at your death, and the deed cannot be attacked for injury (Article 1075-3).

Does a donation-partage avoid inheritance disputes?

It is the best tool French law has for that, because it fixes the value of each lot at the date of the deed for the reserve calculation, provided every child takes and accepts a lot and no usufruct is reserved over a sum of money (Article 1078 of the Civil Code; Cass. civ. 4 November 2015, no. 14-23662). That closes off the most common dispute — a child arguing years later that a sibling's lot was undervalued. It is not absolute: an unequal deed that leaves a child below their reserve can still be reduced at death where existing assets are insufficient (Article 1077-1).

Can I include grandchildren?

Yes, through a transgenerational gift-partition (donation-partage transgénérationnelle), which lets you gift directly to grandchildren in place of your own child (Articles 1075-1 and 1078-4 of the Civil Code). It requires the consent of the middle generation: your child must agree, in the deed, that their descendants are allotted in their place (Article 1078-5). Where children and grandchildren take together, the partition is by branch (Article 1078-6), and the transfer is taxed on the grandparent-to-grandchild relationship (Article 784 B of the General Tax Code).

How are the values fixed?

The gifted assets are valued as at the date of the donation-partage — not at the date of death — when the reserve and freely disposable portion are worked out, so long as all reserved heirs living or represented at death received and accepted a lot and no usufruct was reserved over a sum of money (Article 1078 of the Civil Code). If those conditions fail, the assets revert to a death-date valuation, the ordinary rule for lifetime gifts (Article 922). Any appreciation between the gift and death then belongs to the child who received the asset.

What tax applies?

Each donee pays ordinary gift tax on their lot, at the direct-line rate after their allowance — €100,000 for a child (Article 779, I of the General Tax Code), €31,865 for a grandchild (Article 790 B). Where the lots are unequal and a balancing payment (soulte) is made, that payment is taxed at the rate for sales to the extent of the transfer, and a partition duty of 2.50% applies to the division (Article 746). A reincorporated earlier gift takes only the 2.50% duty, unless the anti-abuse rule for gifts under fifteen years old brings gift tax back into play (Article 776 A).

What is the 2.5% partition duty?

It is the droit de partage — a registration duty or land-registration tax of 2.50% levied on the net value of partitioned assets (Article 746 of the General Tax Code). In a donation-partage it applies to a balancing payment between unequal lots and to a reincorporated earlier gift, taken on its value at the date of the deed. The rate falls to 1.1% for partitions following a divorce, legal separation or the ending of a PACS.

Can I give unequally to my children?

Yes. A donation-partage can allot the children unequally, provided each is still made up to their reserved share (Article 1077-1 of the Civil Code). Where an over-allotted child exceeds the freely disposable portion, or a child is left below their reserve and existing assets are insufficient, the deed can be cut back by an action to reduce. Reserved heirs cannot be disinherited, but within the freely disposable portion you have real freedom to favour one child.

How our French lawyers help with a donation-partage

A donation-partage is only as good as the deed that carries it: the wrong form, a child left out, a usufruct reserved over the wrong asset, or a mishandled balancing payment can all cost the freeze or trigger tax that careful drafting would have avoided. We advise parents and grandparents on whether a donation-partage fits their family, on the choice between the ordinary, joint and cumulative forms, on transgenerational deeds that reach grandchildren, and on reincorporating earlier gifts — including how the 2.50% partition duty and the fifteen-year anti-abuse rule apply to your assets.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. How a donation-partage works depends on the family, the assets, the matrimonial regime, and the exact terms of the deed. Contact our French lawyers for advice on your situation before acting.