The Surviving Spouse's Rights in France

What the surviving spouse inherits in France

A surviving spouse is an heir in France on one condition only: that they are not divorced at the date of death (Article 732 of the Civil Code). What the spouse then receives is not a single fixed share but depends entirely on which other relatives survive alongside them — the couple's children, children of an earlier relationship, the deceased's parents, or no one closer than distant collaterals. The spouse always inherits in full ownership, with a single exception where the law lets them take a usufruct instead.

This is the point that most surprises foreign spouses. Being married does not, by itself, mean you inherit everything, and it does not mean you inherit nothing; it means you inherit a share that the Civil Code calculates from the family that survives. A spouse who dies leaving children of the marriage places the survivor in a very different position from a spouse who dies childless but leaves elderly parents, and different again from a spouse who leaves a step-child from an earlier union. This article sets out each of those situations, the choice the law gives the survivor between usufruct and full ownership, how that choice is made and by when, the separate rights the survivor has over the family home, the enlarged freedom the couple can give each other by a gift between spouses, the special limits that apply in a blended family, and the maintenance claim that protects a spouse left in need.

Two distinctions run through all of it and are worth fixing at the outset. The first is between full ownership (pleine propriété) and usufruct (usufruit): a full owner has the asset outright, whereas a usufructuary has the use and income of an asset for life while someone else — the bare owner (nu-propriétaire) — holds the underlying title and recovers full ownership when the usufruct ends. The second is between the spouse's rights as an heir under the rules of legal devolution, which apply automatically where there is no will, and the enlarged rights the deceased can confer by a lifetime gift between spouses or a will. Both matter, and good planning uses the second to improve on the first.

How much the spouse receives, family by family

The Civil Code sets the surviving spouse's share by reference to a short list of situations, and it is worth taking them in turn because the differences between them are large. The spouse who is not divorced is called to the succession either alone or in competition with the deceased's descendants or parents (Article 756 of the Civil Code), and each combination produces a different result.

With children of the marriage

Where the deceased leaves children or descendants who are all issue of both spouses, the survivor takes, at their own choice, either the usufruct of the whole of the existing estate or the full ownership of one quarter of it (Article 757 of the Civil Code). The children take the rest — the bare ownership of the whole where the spouse chooses the usufruct, or three quarters in full ownership where the spouse chooses the quarter. This is the single most common arrangement, and it is examined in its own right in the next section, because the choice it offers is the most important decision the survivor has to make.

With a child of an earlier relationship

Where the deceased leaves at least one child who has no filiation with the surviving spouse — a step-child, in ordinary language — the survivor takes the full ownership of one quarter of the estate and has no option to take a usufruct instead (Article 757 of the Civil Code). The children, common and non-common alike, share the remaining three quarters. The legislature deliberately withheld the usufruct option here: it did not want the children of an earlier union to be locked, potentially for decades, into holding only the bare ownership of assets whose use and income belong for life to a surviving spouse who is not their parent (see the commentary at Article 2089 of the source and Article 757). The consequences of this rule for a blended family, and the ways of improving on it, are dealt with below.

With parents but no children

Where the deceased leaves no descendants but is survived by their father and mother, the estate is shared: the surviving spouse takes one half in full ownership, and each parent takes one quarter (Article 757-1 of the Civil Code). Where only one parent survives, the quarter that would have gone to the predeceased parent passes to the spouse, so the survivor takes three quarters in full ownership and the surviving parent one quarter. In this order the spouse's rights are in full ownership throughout; there is no usufruct and no option.

Where the spouse inherits alone

Where the deceased leaves neither descendants nor father nor mother, the surviving spouse takes the entire estate in full ownership (Article 757-2 of the Civil Code). The spouse's presence excludes the deceased's brothers, sisters and more distant relatives from the ordinary devolution. Two limits qualify this. The first is a maintenance claim: where the spouse takes the whole estate, or three quarters of it alongside a surviving parent, the deceased's ordinary ascendants — grandparents and beyond — can claim a maintenance pension from the estate if they are in need (Article 758 of the Civil Code). The second is a legal right of return in favour of the deceased's siblings: where the deceased received property from their own parents by gift or inheritance and it is still in the estate in kind, the brothers and sisters (or their descendants) take back one half of that property, the "family assets" the rule is designed to keep in the bloodline, while the other half goes to the spouse (Article 757-3 of the Civil Code). This right of return is not of public order and can be excluded by the deceased in a will.

The practical lesson from this map is that the spouse's position is strongest when the couple has no children and no surviving parents, and weakest — a fixed quarter with no flexibility — where there is a step-child. Everything in between is the usufruct-or-quarter choice, to which we now turn.

The option: usufruct of everything or one quarter in full ownership

Where the deceased leaves children who are all of the marriage, the survivor must choose between two very different things: the usufruct of the whole of the existing estate, or the full ownership of one quarter of it (Article 757 of the Civil Code). By "existing estate" the Code means the assets the deceased owned at death, less the liabilities (debts and charges) and less any property that has been left by particular legacy (Article 757). The choice is personal to the survivor, and there is no default answer that is right for every family; it turns on what the survivor needs and on what the couple wants for the children.

The usufruct of the whole estate. If the survivor opts for the usufruct — or is deemed to have done so, as explained below — they take the use and income of every asset in the estate for the rest of their life, while the children take the bare ownership of those same assets (Article 757 of the Civil Code). In practice this is usually the more valuable and more protective option for the survivor: it lets them go on living in the family home, keep the rental income from a let property, and draw the income from investments, without having to sell anything or share it out. When the survivor dies, the usufruct simply extinguishes and the children, who already hold the bare ownership, recover full ownership automatically. That recovery is free of inheritance tax, because the children are not "inheriting" the usufruct — it disappears — which is why the usufruct option is often the most tax-efficient route for the children as well (the extinction of a lifetime usufruct lets them recover full ownership free of duty). The survivor, holding the usufruct, must respect the ordinary duties of a usufructuary: the descendants can require an inventory of the movables and a description of the properties subject to the usufruct (Article 600 of the Civil Code), and, unless the deceased provided otherwise, the survivor must give security to enjoy the assets prudently (Article 601).

One quarter in full ownership. If the survivor instead opts for the quarter, they take one quarter of the estate outright, in full ownership, and the children share the remaining three quarters in full ownership between them. This suits a survivor who would rather own a defined, unencumbered share now — one they can sell, give away or leave by their own will — than hold a life interest spread thinly across the whole estate. It can also suit a family that wants to make a clean division at the first death rather than leaving the children as bare owners for many years.

From a tax point of view the choice is broadly neutral for the survivor, because a surviving spouse is exempt from French inheritance tax whatever share they take (Article 796-0 bis of the General Tax Code). The tax consequences fall instead on the children, and for them the usufruct is generally the cheaper outcome, because recovering full ownership on the survivor's death by the extinction of the usufruct happens free of duty. The genuinely difficult questions are therefore not about tax but about protection and control — who needs the income, who should own what, and how much flexibility the survivor should keep. Those questions are worth putting to a notaire before, not after, the choice is locked in.

How the option is exercised

The survivor's option is a personal right, and in principle it can be exercised at any time up to the division of the estate, without any particular form (Article 758-3 of the Civil Code). In practice the survivor cannot simply leave the question open indefinitely, because the other heirs — the children — are entitled to force a decision. Any heir may invite the survivor in writing to elect between the usufruct and the quarter, and once that written request has been made the survivor has three months to answer (Article 758-3). This is the mechanism that stops the estate being frozen while the survivor delays.

Two rules fill the gap where the survivor does not answer. If the survivor fails to take a position within the three months, they are deemed to have opted for the usufruct of the whole estate (Article 758-3 of the Civil Code). And if the survivor dies before making any election at all, they are likewise deemed to have opted for the usufruct (Article 758-4). The default, in other words, leans towards the usufruct — the option the law regards as the more protective for the survivor. A further practical restriction applies while the choice is still open: until the survivor has opted, they are not permitted to dispose of the assets they take from the estate (Article 758-1 of the Civil Code), so a survivor who wants to sell an asset has to make the election first.

There is one important structural point that changes the whole calculation. Everything above describes the survivor's legal option under the rules of devolution. But if the deceased had made a gift between spouses (a donation au dernier vivant) or left a will in the survivor's favour, the survivor's choice is no longer limited to "usufruct of everything or a quarter"; it opens onto the wider set of shares that a gift between spouses allows, described later in this article (Article 1094-1 of the Civil Code). A survivor who benefits from such a gift and holds children of the marriage will usually be choosing among three enlarged options rather than the two legal ones, and the same three-month, force-the-issue machinery applies to that wider choice. Because a survivor cannot combine their legal rights with the rights conferred by a gift or will — they take one or the other, never both stacked on top of each other (Article 758-6 of the Civil Code) — getting the election right is a matter for careful advice.

The spouse's housing rights: temporary and life

Quite apart from the share the survivor inherits, French law gives the surviving spouse specific rights over the home they were living in. These rights protect the roof over the survivor's head and exist alongside — not instead of — whatever share of the estate the survivor takes. There are two of them: a short, automatic right for the first year, and a longer right the survivor can claim for life.

The temporary housing right (one year)

For one year from the death, the surviving spouse has the free enjoyment of the home they were actually occupying as their principal residence, together with the furniture in it (Article 763 of the Civil Code). Where the home belonged to the couple, or belonged wholly to the estate as the deceased's own property, the survivor enjoys it and its furniture for that year without owing the estate any compensation; the right extends even to a home the deceased held in undivided shares with a third party (Article 763). Where the home was rented, the estate must reimburse the survivor the rent they pay during the year as it falls due, and those rents are deductible from the estate (Article 775 quater of the General Tax Code). To qualify, the survivor must have been effectively occupying the home as their principal residence at the moment of death — a second home is not protected, even as a fallback.

This temporary right is of public order: the survivor cannot be deprived of it, not even by the deceased's will, and it applies whatever the couple's matrimonial regime (Article 763 of the Civil Code). It arises automatically, without the survivor having to claim it. Its nature is matrimonial rather than successoral — it is a direct effect of the marriage — with the consequence that the advantage the survivor draws from it is not taxable as part of the inheritance (Article 796-0 bis of the General Tax Code). One structural warning matters for owners who hold their home through a company: where the family home is owned by a société civile immobilière (SCI) rather than by the spouses themselves, the home belongs to the company and not to the couple, so the Article 763 condition is not met and the housing right does not apply unless the couple had put a lease or occupation agreement in place with the company.

The life right of occupation

Beyond the first year, the survivor may claim a life right to occupy the home and a life right to use the furniture in it (Article 764 of the Civil Code). Unlike the temporary right, this one does not arise automatically: the survivor must claim it within one year of the death (Article 765-1 of the Civil Code), although the courts accept that the claim can be made by conduct that clearly shows the intention rather than only by a formal demand — merely staying on in the home is not enough. The right applies to a home owned by the deceased alone or owned in common by the couple and effectively occupied by the survivor as their principal residence at death, together with the furniture in the estate that furnishes it.

The life right of occupation is a successoral right, not a matrimonial one, so the survivor must accept the succession to claim it, and its value is set against the value of the inheritance rights the survivor takes (Article 765 of the Civil Code). If the life right is worth less than the survivor's inheritance rights, the survivor can take the balance from the other assets; if it is worth more, the survivor does not have to compensate the estate for the excess. Where the survivor has opted for the usufruct of the whole estate, the life right of habitation and use is simply absorbed into that universal usufruct. Unlike the temporary right, the life right is not of public order: the deceased can deprive the survivor of it, but only by an authentic will made before a notaire in the form required for such wills (Article 764 of the Civil Code).

How the life right is valued. For the calculation of inheritance duty, the value of the right of habitation and use is fixed at 60% of the value of the usufruct, itself determined by the age-based scale of Article 669 of the General Tax Code (Article 762 bis of the General Tax Code). The age used is the survivor's age one year after the death — that is, at the end of the temporary housing right. So for a home worth €500,000 and a survivor aged 62 a year after the death, the usufruct on the Article 669 scale is 40% of the value (€200,000), and the life right is 60% of that, or €120,000. Because the surviving spouse is exempt from inheritance tax (Article 796-0 bis of the General Tax Code), this valuation does not cost the survivor anything; it matters for working out the duty owed by the children who take the assets burdened with the survivor's right.

Preferential allotment of the home

A related protection lets the survivor keep the home itself in the division of the estate rather than see it sold. Where the survivor inherits a share in full ownership, they can require the preferential allotment (attribution préférentielle) of the property — or of the lease — of the home they actually live in and the furniture in it, provided it was their residence at the time of death (Article 831-2 of the Civil Code). For most heirs this allotment is discretionary, but for the surviving spouse it is granted as of right: the other heirs cannot refuse it (Article 831-3 of the Civil Code). Where the allotment leaves a balancing payment (soulte) owing to the other heirs, the survivor can require time to pay — up to ten years for half of the sum due (Article 832-4 of the Civil Code).

Gifts between spouses (donation au dernier vivant)

The rights described so far are what the law gives the survivor by default. A couple who want to give each other more can do so by a gift between spouses, and it is one of the most useful and most common tools in French estate planning. Ordinary gifts can only transfer assets the donor already owns (Article 894 of the Civil Code), but gifts between spouses are allowed to transfer all or part of the property the donor will leave at death — future property — and when they do they take effect like a will (Articles 1093 to 1094-1 of the Civil Code).

A gift of future property between spouses is what is usually called a donation au dernier vivant — a gift to the last survivor — and its purpose is precisely to enlarge the survivor's rights beyond what legal devolution would give them (see Article 1094-1 of the Civil Code and the enlarged shares described in the next section). It must be made before a notaire (Article 1093 of the Civil Code). It can be one-way, with only one spouse giving to the other, or reciprocal, with each giving to the other. Because it is a gift of future property rather than of present assets, it operates like a testamentary disposition: it takes effect only at the donor's death, and it can be freely revoked by the donor at any time during their life — often, in practice, without the other spouse's knowledge (Article 1096, paragraph 1, of the Civil Code). The form of revocation is free; a later will can revoke an earlier gift between spouses.

One automatic consequence is worth knowing. Since 1 January 2005, a divorce automatically revokes a gift between spouses of future property, unless the spouse who made it has said otherwise (Article 265, paragraph 2, of the Civil Code). A separate but valuable feature is that where the deceased leaves neither descendants nor parents, a gift of future property to the spouse defeats the legal right of return that the deceased's brothers and sisters would otherwise have over "family assets" — another reason such gifts are used. The gift between spouses is, in short, the ordinary way a married couple in France improves the survivor's position, and it is worth putting in place while both spouses are alive and well rather than leaving the survivor to the bare legal shares.

The special disposable portion between spouses

What makes a gift between spouses so powerful is that it is measured against a larger yardstick than an ordinary gift. A person with children cannot freely give away the whole of their estate: the children are reserved heirs, and only the freely disposable portion (quotité disponible) can go to someone outside the protected group. But a gift to one's own spouse is measured not against the ordinary disposable portion but against a special, enlarged one — the special disposable portion between spouses (quotité disponible spéciale entre époux) — which lets a spouse be given more than a stranger to the estate could receive even where there are reserved heirs (Article 1094-1 of the Civil Code).

Where the deceased leaves children, whether of the marriage or not, they may dispose in favour of their spouse of one of three things, at the survivor's choice (Article 1094-1 of the Civil Code):

• the full ownership of whatever could be left to a stranger — that is, the ordinary disposable portion, which with a single child is one half of the estate, already larger than the one quarter of legal devolution;
• one quarter of the estate in full ownership together with three quarters in usufruct; or
• the whole estate in usufruct alone.

The value of this special portion is that in usufruct the spouse can be given more than a stranger ever could: where the survivor takes the most extensive option (a quarter in full ownership and three quarters in usufruct) or the whole in usufruct, that usufruct burdens even the reserved share of the descendants, whose reserve can then be exercised only in bare ownership. This is how a gift between spouses lets a couple with children give the survivor the use and income of the entire estate for life — including, in a blended family, a usufruct over the whole, which legal devolution never allows where there is a step-child (Article 1094-1 of the Civil Code). In the common case where the survivor benefits from a gift of the widest portion and competes with three children of the marriage, the survivor's mere legal rights are absorbed by the gift, which is more generous.

The right to "cantonner" the gift

A gift between spouses does not force the survivor to take everything it offers. Unless the donor has said otherwise, the survivor may confine their share (cantonner son émolument) — that is, accept only part of the property given to them, leaving the surplus to the children (Article 1094-1, paragraph 2, of the Civil Code). Confining the share requires the survivor first to accept the succession and then to choose to take only part of it. Crucially, this partial acceptance is not treated as a gift by the survivor to the other heirs, so it carries no gift-tax cost to them (Article 1094-1, paragraph 2); for tax the assets are treated as passing directly from the deceased to whoever ends up with them (Article 788 bis of the General Tax Code). The ability to confine the share gives a family real flexibility: the survivor can look at the actual situation at the first death and take exactly as much as they need, passing the rest to the children at once rather than being over-provided for and having to give it back. The same power to confine a share is open to an ordinary legatee under a will (Article 1002-1 of the Civil Code), but it does not apply to gifts of present property or to the survivor's bare legal rights.

Blended-family limits

A blended family — where one or both spouses have children from an earlier relationship — is the situation in which French law is most protective of the children and, correspondingly, most restrictive of the survivor. Three rules combine to cap what a surviving step-parent can take, and a couple in this position needs to plan around them deliberately.

The first has already been met: under legal devolution, where the deceased leaves even one child who is not the survivor's own, the survivor takes a fixed one quarter in full ownership and has no option for a usufruct of the whole (Article 757 of the Civil Code). This is the deliberate refusal of the law to make the survivor a life usufructuary of assets whose bare ownership belongs to another parent's children.

The second concerns what a gift between spouses can do in this setting. A gift between spouses can indeed give the survivor a usufruct over the whole estate even where there are children of an earlier union — something devolution forbids. But the children of the earlier union have a defensive right of their own. Where the gift was made within the limits of the ordinary disposable portion in full ownership, each child who is not issue of both spouses may, unless the donor has clearly said otherwise, substitute for the performance of the gift the abandonment of the usufruct over the share of the estate they would have taken had there been no surviving spouse (Article 1098 of the Civil Code). In plain terms, a non-common child can convert the survivor's ownership interest that would fall on their share into a mere usufruct, so that on the survivor's death the child recovers full ownership of the family assets. This "forced usufruct" mechanism is a compromise: the survivor keeps the income for life, and the deceased's own bloodline recovers the capital.

The third rule polices matrimonial-regime advantages. Spouses often arrange their matrimonial regime — for instance a clause giving the whole of the community to the survivor — to benefit each other, and such advantages are normally treated as a feature of the marriage contract rather than as a gift, so they escape the reserve. But where there is a child who is not issue of both spouses, that indulgence is withdrawn: any arrangement that would give one spouse more than the special disposable portion of Article 1094-1 is ineffective for the excess and can be cut back in value by the non-common child, through the action known as the action en retranchement (Article 1527, paragraph 2, of the Civil Code). The effect is to place a ceiling — the Article 1094-1 special portion — on what a step-parent can ultimately keep at the expense of the deceased's own children, whichever technique the couple used to get there.

The practical message for a blended family is that the survivor can be well protected, but only by planning: a gift between spouses, the right matrimonial regime, and an understanding of the non-common children's defensive rights all have to be assembled together, with advice, rather than left to the default rules that give a step-parent only a quarter.

The spouse's maintenance claim

A final protection catches the case the shares miss: a surviving spouse who is left in need. A survivor who is in need at the date of death can claim a maintenance pension (pension alimentaire) from the estate (Article 767 of the Civil Code). The claim is the continuation, after death, of the duty of support that spouses owe each other during the marriage under Article 212 of the Civil Code, and it exists whether or not the survivor also inherits — it can top up a thin inheritance or provide for a survivor who has been left out.

The pension has firm limits and firm conditions. It is drawn from the assets of the estate and only up to their value; it does not attach to the heirs' own patrimony, so the heirs are never liable to pay it out of their own pockets. It must be claimed within a year of the death — a deadline that is extended, where the estate is in undivided ownership, until the division is complete. It is borne by all the heirs and, if they are insufficient, by the particular legatees in proportion to what they receive. For tax the pension is treated as income in the survivor's hands: the heirs or legatees who pay it can deduct it from their taxable income, and the survivor is taxed on it as a creditor rather than as an heir.

It is worth distinguishing the survivor's maintenance claim from a comparable but separate claim that runs the other way. Where the survivor takes the whole estate or three quarters of it alongside a surviving parent, it is the deceased's own ordinary ascendants — grandparents and beyond, other than the father and mother — who may claim a maintenance pension from the estate if they are in need (Article 758 of the Civil Code). Both claims share the same logic: French succession law lets the fixed shares do the ordinary work, and then adds a needs-based safety net so that no close family member who depended on the deceased is left destitute by the way the estate happens to fall.

Frequently asked questions about a surviving spouse's rights in France

What does a spouse inherit in France?

It depends on who else survives. With children of the marriage, the spouse chooses between the usufruct of the whole estate and one quarter in full ownership (Article 757 of the Civil Code). With a step-child, the spouse takes one quarter in full ownership only, with no option. With the deceased's parents but no children, the spouse takes one half (both parents surviving) or three quarters (one parent), the rest going to the parents (Article 757-1). With neither descendants nor parents, the spouse takes the whole estate (Article 757-2). A spouse is an heir only if not divorced at the death (Article 732).

Usufruct or a quarter — which is better?

For a survivor with children of the marriage, the usufruct of the whole estate is usually the more valuable and protective option: it gives the use and income of every asset for life, and the children recover full ownership free of inheritance tax when the usufruct ends (Article 757 of the Civil Code). The quarter in full ownership suits a survivor who would rather own a defined share outright now than hold a life interest across the whole estate. Tax is broadly neutral for the survivor, who is exempt from inheritance tax in either case (Article 796-0 bis of the General Tax Code); the difference falls on the children.

Can my spouse stay in our home?

Yes. For one year from the death the survivor has the free enjoyment of the family home and its furniture — a right of public order no will can remove (Article 763 of the Civil Code). Beyond that year, the survivor may claim, within a year, a life right to occupy the home and use its furniture (Article 764), valued for tax at 60% of the usufruct on the Article 669 scale (Article 762 bis of the General Tax Code). Where the survivor inherits a share in full ownership, they can also require the home to be allotted to them in the division as of right (Articles 831-2 and 831-3).

What is a donation au dernier vivant?

A gift between spouses of future property — a gift to the last survivor — made before a notaire, that enlarges the survivor's rights beyond what legal devolution gives (Articles 1093 and 1094-1 of the Civil Code). It is measured against a special, larger disposable portion, so a spouse can receive more than a stranger could: with children, the survivor may take the ordinary disposable portion in full ownership, or a quarter in full ownership plus three quarters in usufruct, or the whole estate in usufruct (Article 1094-1). It takes effect only at death and can be freely revoked during the donor's life (Article 1096), and a divorce revokes it automatically (Article 265).

Is the spouse a reserved heir in France?

Only where there are no descendants. Where the deceased leaves no children or other descendants, the surviving spouse is a reserved heir for one quarter of the estate, so gifts and legacies cannot exceed three quarters (Article 914-1 of the Civil Code). Where there are descendants, they are the reserved heirs and the spouse is not; the spouse's protection then comes from the devolution shares, the housing rights, and any gift between spouses.

Can the other heirs force my spouse to decide between usufruct and the quarter?

Yes. The survivor's option can be exercised at any time up to the division, but any heir may invite the survivor in writing to choose; if the survivor has not answered within three months, they are deemed to have opted for the usufruct (Article 758-3 of the Civil Code). The same default applies if the survivor dies before choosing (Article 758-4). Until the survivor has opted, they may not dispose of the assets they take from the estate (Article 758-1).

How our French lawyers help with a surviving spouse's rights

The rights of a surviving spouse in France rarely fall out the way a foreign couple expects, and the shares set by the Civil Code are only the starting point. We advise spouses, heirs and owners on exactly what a survivor will take given the family, whether the usufruct or the quarter is the better election, how the housing rights and preferential allotment of the home work in practice, and — most importantly — how to improve on the default position while both spouses are alive, through a gift between spouses (donation au dernier vivant), the right matrimonial regime, and, in a blended family, a structure that respects the non-common children's rights while still protecting the survivor.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. What a surviving spouse inherits depends on the family, the matrimonial regime, the assets and their location, and any will or gift between spouses. Contact our French lawyers for advice on your situation before acting.