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In the context of an estate settlement, it is possible to set up a gift to the surviving spouse, also known as a gift between spouses (donation entre époux). What is it? What effect does it have on your spouse’s inheritance rights? Here is an overview.

What is a gift to the surviving spouse?

By marrying, your spouse becomes one of your heirs. In principle, their inheritance rights are set out in the Civil Code, depending on whether or not there are children.

However, there are two exceptions: if a will exists, or if a gift to the surviving spouse has been set up.

The gift to the surviving spouse is a notarial document that makes it possible to strengthen your spouse’s rights in the inheritance division. It thereby increases the share of the estate that your spouse would normally receive.

The gift can be set up regardless of your matrimonial property regime.

Note. Couples who have entered into a PACS (French civil partnership) or who live together without any formal union cannot set up a gift to the surviving spouse.

How does the gift to the surviving spouse work?

The gift to the surviving spouse only takes effect upon the death of the spouse who made the gift. The rights it grants then depend on whether or not there are children.

If you have children

If you have one or more children, your spouse may choose between:

• the entire estate in usufruct (usufruit),
• one quarter in full ownership and the remainder in usufruct,
• full ownership of the disposable portion of the estate (quotité disponible), i.e. the portion not reserved for the children by law, which depends on their number.

The children may also agree to let the surviving spouse receive a larger share, including the entire estate in full ownership, meaning your spouse would be free to dispose of, use, or sell the assets.

If no agreement is reached, the children may request that the gift be reduced (réduction). Your spouse must then choose between the three options mentioned above. Their choice will determine the amount of the reduction compensation (indemnité de réduction) owed to the children.

If you have no children

If you have no children, the gift to the surviving spouse allows the entire estate to be transferred to them. However, if one of your parents is still living, that parent may, under certain conditions, exercise their right of return (droit de retour) over assets they had given you before your death that form part of the estate.

What procedure should be followed?

You can set up the gift between spouses at two points in time:

• during the marriage,
• before the marriage, via a marriage contract (ægtepagt/contrat de mariage).

The gift must be drawn up by a notary and costs €135.84 including all fees, plus registration charges and registration of the gift in the central register of last-will dispositions (fichier central des dispositions de dernières volontés).

In the gift document, you can either give your spouse the option to choose the arrangement they prefer themselves, or, conversely, limit the available options.

The surviving spouse is entirely exempt from inheritance tax. The gift to the surviving spouse therefore has no impact on the spouse’s inheritance tax, since they owe none.

Is it possible to cancel a gift to the surviving spouse?

You may revoke the gift at any time, unless it was set up as part of a marriage contract.

Note that you can cancel your gift without your spouse being informed of it.

Note. The gift between spouses concerning current or future assets is not revoked by the birth of children, even if those children become forced heirs (héritiers réservataires).

Key takeaways

The gift to the surviving spouse is a simple and inexpensive deed that widens the choice available to your spouse when the estate is settled, without ever encroaching on the children’s reserved share. It remains revocable for as long as it has not been included in a marriage contract, and it costs nothing in tax terms, since the surviving spouse is exempt from inheritance tax.

To understand what your spouse would receive without such a gift, see our overview of the inheritance rules in France.

Frequently asked questions

Who can set up a gift to the surviving spouse?

Only married couples, regardless of their matrimonial property regime. Couples in a PACS or living together without any formal union cannot use this arrangement.

How much does a gift to the surviving spouse cost?

The notarial document costs €135.84 including all fees, plus registration charges and registration of the gift in the central register of last-will dispositions.

What options does the surviving spouse have where there are children?

They may choose between the entire estate in usufruct, one quarter in full ownership with the remainder in usufruct, or full ownership of the disposable portion of the estate.

Can a gift to the surviving spouse be revoked?

Yes, at any time, unless it was set up as part of a marriage contract. The revocation can take place without the spouse being informed of it.

Does the birth of a child cancel the gift between spouses?

No. The gift between spouses concerning current or future assets is not revoked by the birth of children, even if those children become forced heirs.