Gift between spouses in France: options, cost

What the gift adds to the statutory rights

Without a gift, the surviving spouse already inherits. Where there are children, they choose the usufruct of all the assets or ownership of a quarter when all the children are from the marriage; they receive only ownership of a quarter if there is a child from another relationship (art. 757). The gift widens this choice:

Sources: Civil Code, art. 757, 1094 and 1094-1; service-public.gouv.fr for the statutory shares where there are no children. The disposable portion depends on the number of children on the day of death: half with one child, a third with two, a quarter with three or more (service-public.gouv.fr).

Where there are no children, the deceased’s parents who are still alive may exercise their droit de retour (right of reversion) over the assets they had given them (service-public.gouv.fr).

And if the gift covers the whole estate in full ownership? Service-public.gouv.fr states that the spouse receives everything if the children accept it. Otherwise, the children bring an action en réduction (action to reduce an excessive gift), and the spouse must choose between the three options of article 1094-1; their choice sets the indemnité de réduction (reduction payment) owed to the children.

The choice on death and limiting the gift

The deed may leave the spouse the choice of option or, on the contrary, restrict their options (service-public.gouv.fr). On the death, the survivor may also cantonner (limit) their rights: unless the donor has stipulated otherwise, they may restrict what they receive to only part of the assets given, and this restriction is not treated as a gift made to the other heirs (art. 1094-1).

For the family home, limiting the gift allows the survivor, for example, to restrict their rights to the residence and leave the rest to the children. When they take usufruct, the value of that right depends on their age: see our guide on usufruit et nue-propriété (usufruct and bare ownership). Regardless of the gift, attribution préférentielle (preferential allocation) of the home is as of right for the surviving spouse on partition (art. 831-3).

Revocation, divorce and the birth of children

A gift of future assets made between spouses during the marriage is always revocable (art. 1096). Service-public.gouv.fr specifies:

• revocation is made before a notaire or by will;
• it can take place without the other spouse being informed;
• the gift is automatically cancelled on divorce, unless the spouse who made it decides to keep it in place.

The birth of a child does not revoke it: gifts between spouses of present or future assets “are not revoked by the birth of children” (art. 1096) (our translation). By contrast, a gift of present assets taking effect during the marriage can be revoked only under the conditions of articles 953 to 958 (same article). To pass on a home to the children now, see our guide on the donation d’un logement aux enfants (gifting a home to children).

The notaire’s role, timing and fees

When? During the marriage, or before it, in a contrat de mariage (marriage contract); in the latter case, it has no effect if the marriage does not take place (art. 1094; service-public.gouv.fr).

How? By notarial deed. The notaire registers the gift in the FCDDV (fichier central des dispositions de dernières volontés, the central register of wills), unless the donor objects. The spouses may make reciprocal gifts to each other, each in a separate notarial deed (service-public.gouv.fr).

How much? Drawing up the deed costs €135.84 inc. VAT; registration in the FCDDV may be added (service-public.gouv.fr). On death, the gift does not increase the spouse’s tax, since they are exempt from droits de mutation par décès (inheritance tax) (CGI, art. 796-0 bis).

Which professional to consult

The notaire (notary) draws up the gift, registers it in the FCDDV, advises on the option to provide for according to the make-up of the family and settles the estate on death. The agent immobilier (estate agent) values the family home, a useful figure for comparing the options and preparing any limitation of the gift.