The Rights of the Surviving Spouse
The position of the surviving spouse is a complex and evolving one. The general rule is that where the testator leaves children, the surviving spouse is not entitled in his or her own right to a statutory “reserved share”. On the other hand, if the deceased dies intestate, the surviving spouse takes, by operation of law, alongside the children, a quarter of the estate of the deceased. Where there are no children, but the intestate leaves behind only ascendants or siblings, the surviving spouse takes most of the estate.
What this means is that a testator is free to cut his or her surviving spouse out of their Will absolutely, and because this surviving spouse has no statutory “reserved share”, this disinheriting is perfectly legal and will stand, save in respect of any children of a previous marriage, who could successfully contest this situation on the grounds that this would deprive them of their rightful reserved share of the estate of the deceased parent.
Donation au Dernier Vivant
A spouse may elect to give his spouse, via a donation au dernier vivant (final living testament, sometimes also misleadingly referred to as a donation entre epoux or donation between spouses), the freely disposable share of his estate (quotité disponible). This form of gift is only enacted by his death, and can be reversed until then, or by Will. It means that at his discretion, the testator can redraw the shape of the quotité disponible in a manner that is highly beneficial to the surviving spouse, and effectively ensures that the survivor has a lifetime interest over the whole estate, regardless of the existence of children and their statutory reserved share.
This is achieved by specifying in the gift au dernier vivant or in the Will that the survivor is at liberty to opt to take the freely disposable share granted to him in one of three forms: either in the form of the quotité disponible in the strictest sense, which varies in size according to the number of children, or in a broader sense, to take it by way of absolute ownership over a quarter of the deceased estate and the right of usufruit (a form of life interest – in other words, the right to use property and enjoy the revenues from it without selling it) over the remainder. There is also the option of taking it by acquiring usufruit over the whole of the deceased’s estate.
Although a usufruit is not as desirable as absolute beneficial ownership, it nonetheless enables the surviving spouse to enjoy the income from the estate and maintain their existing lifestyle. There are various ways of tweaking this right of usufruit in respect of stocks and shares in order to offset the fact that the nue propriété (bare property) belongs to the children.
Inheritance and Succession
The extent of the restrictions imposed and codified within French inheritance law can be surprising and confusing to those who are unfamiliar with French law and language.