Surviving spouse in France: right to the home

The first year: an automatic right

Three conditions are enough (art. 763): being a conjoint successible (spouse entitled to inherit), actually living in the home as a main residence at the time of the death, and the home belonging to the spouses or forming entirely part of the estate. The spouse then has free use of it for one year, as well as of the furniture included in the estate.

The right also exists where the home does not belong wholly to the couple:

• rented home: the rent paid during the year is reimbursed by the estate as it is paid (art. 763). Service-public.gouv.fr specifies that the spouse carries on paying the rent and then asks for it to be reimbursed;
• home held in indivision (joint ownership) between the deceased and other people, for example the deceased’s brothers: the indemnité d’occupation (occupancy payment) is reimbursed by the estate during the year (art. 763).

The law treats these rights as direct effects of the marriage, not as inheritance rights; since the article is a matter of public policy, a will cannot remove them (art. 763).

The lifelong right of residence and use

Article 764 provides that “Unless the deceased expressed a contrary wish under the conditions of article 971, the spouse entitled to inherit who was actually living, at the time of the death, as a main residence, in a home belonging to the spouses or forming entirely part of the estate, has in that home, until their death, a right of residence and a right of use over the furniture, included in the estate, that furnishes it” (our translation). Article 971 refers to the testament par acte public (notarial will), drawn up by two notaires or by one notaire assisted by two witnesses: a testament olographe (handwritten will) is not enough to deprive the spouse of this right.

The deadline. The spouse has one year from the death to state that they wish to benefit from these rights (art. 765-1).

What it allows. Living in the home, under the conditions of articles 627, 631, 634 and 635 of the Civil Code. By way of exception to articles 631 and 634, if the home is no longer suited to the spouse’s situation, the spouse or their representative may let it, for a use other than commercial or agricultural, to fund new living arrangements (art. 764). Both the spouse and the heirs may require an inventory of the furniture and a schedule of the condition of the property (same article).

What it costs against the share of the inheritance. The value of the right of residence is set against the spouse’s inheritance rights. If it is lower, they take the balance from the other assets; if it is higher, they owe the estate nothing for the excess (art. 765).

Annuity or lump sum. The spouse and the heirs may convert these rights into a rente viagère (life annuity) or a lump sum, by agreement; if a minor or a protected adult is a party, the juge des tutelles (guardianship judge) must authorise it (art. 766).

Tenants: what happens to the lease

The lease of a home actually used as the residence of both spouses is deemed to belong to both of them, even if it was signed by only one of them and even before the marriage. On the death, the co-holder spouse has an exclusive right to the lease, unless they expressly waive it (art. 1751). Service-public.gouv.fr adds that, if the spouses lived apart, the spouse may ask for the lease to be transferred, and other relatives may also claim it; the juge des contentieux de la protection (judge for consumer and tenancy disputes) decides in the event of a dispute.

Usufruct, a quarter in ownership and preferential allocation

These rights to the home fit together with the spouse’s share of the inheritance. Where all the children are from the marriage, the spouse chooses between the usufruit (usufruct, a life interest) of all the assets and outright ownership of a quarter; where there is a child from another relationship, they receive a quarter in ownership (art. 757). Any heir may ask them in writing to choose; without a written reply within three months, they are deemed to have opted for the usufruct (art. 758-3). Where the deceased deprived them of the lifelong right by will, their usufruct rights, whether by law or under a gift or bequest, remain intact (art. 764).

On partition, attribution préférentielle (preferential allocation) of the home is as of right for the surviving spouse, without prejudice to their lifelong right of residence (art. 831-3). See also our guide on usufruit et nue-propriété (usufruct and bare ownership).

On the tax side, the spouse is exempt from droits de succession (inheritance tax) (CGI, code général des impôts (General Tax Code), art. 796-0 bis). The other heirs may obtain deferred payment of the tax relating to the property subject to the lifelong right, at the latest six months after the spouse’s death or the conversion of their rights into an annuity or a lump sum (CGI, annex III, art. 404 B).

Which professional to consult

The notaire (notary) records the statement of a spouse claiming the lifelong right, calculates how it is set against their share of the estate and drafts any agreement converting it into an annuity or a lump sum. The agent immobilier (estate agent) values the home, the basis for these calculations, and can manage letting it when the spouse has to move elsewhere.