Preferential allocation and equalisation payment: can the surviving spouse demand an advance?

Imagine: you own a flat in Tourcoing, held in co-ownership with your siblings after the death of your father. Your mother, as usufructuary (meaning she has the right to live in the property or receive rent from it), wishes to sell her share. But one of your brothers wants to keep the property and offer you an equalisation payment (a sum of money compensating the value of the other heirs' shares). The question arises: can your mother demand an advance on this equalisation payment even before the final partition is carried out? This is precisely the issue decided by the Court of Cassation in a judgment of 3 March 1976 (No. 74-13.110). And the answer is not as simple as one might think.

Although old, this decision remains a reference for all heirs faced with a preferential allocation (the right for an heir to be allocated a particular property rather than another). It particularly concerns surviving spouses who benefit from a usufruct (right of use and enjoyment) over a community property. Should an advance on the equalisation payment be paid to them to enable them to live decently? The judges held that no, unless their precarious situation is demonstrated. But beware: this decision does not close the door entirely.

In this article, we will dissect the facts, the reasoning of the Court, and give you the keys to understanding your rights if you are in a similar situation. Whether you are in Wattrelos, Lille or elsewhere, the principles are the same. And if you feel lost faced with these concepts of equalisation payment, usufruct and preferential allocation, don't panic: we will explain everything simply.

The facts: a story that happens every day

Mr X, a property owner in Tourcoing, died on 21 August 1964. He was survived by his wife, married under the community of property regime (community of acquests), and their children. By will, he bequeathed to his wife the usufruct (the right to live in or let the property) of the family flat. But the flat was part of the community property: it belonged half to the deceased and half to the wife. Upon death, the succession opened: the children inherited their father's share, while the mother retained her half in full ownership, plus the usufruct over the children's share.

One of the children wishes to have the flat allocated to him preferentially (i.e., in priority over the other heirs). The law allows this, particularly for residential properties. But this allocation is not free: the allocating child must pay an equalisation payment to the other heirs to compensate for the value of their rights. Here, the equalisation payment is owed both to the other children and to the mother, who is the usufructuary.

The mother, finding herself with no immediate resources, asks the Court of Appeal to grant her an advance on the equalisation payment that will be due to her. She argues that she cannot enjoy her usufruct as long as the liquidation and partition operations are not completed. The Court of Appeal, after ordering an expert valuation to determine the amount of the equalisation payment, refuses to grant her an advance. Reason: she is not without resources, since she benefits from the usufruct. But the mother contests: she cannot yet enjoy this usufruct, and the heirs have even requested the conversion of the usufruct (i.e., its replacement by an annuity or capital).

The case goes up to the Court of Cassation. The question is simple: can the judge refuse an advance on the equalisation payment to the surviving spouse usufructuary, simply by stating that he or she is not without resources because of the usufruct, without verifying whether he or she can actually enjoy it? The Court of Cassation answers in the affirmative, but subject to conditions.

The reasoning of the court — dissected

In its judgment of 3 March 1976, the Court of Cassation upholds the decision of the Court of Appeal. It considers that the latter made legitimate use of its sovereign power of appreciation (the power of trial judges to assess the facts) by refusing the advance. But beware: the Court imposes a condition. The trial judges cannot simply say that the usufructuary is not without resources because she has a usufruct. They must establish that she can actually enjoy this usufruct before the end of the partition operations. In this case, the Court of Appeal had ordered an expert valuation to fix the equalisation payment, and it considered that the mother had not demonstrated an urgent need for money. The Court of Cassation approves: the refusal of an advance falls within the sovereign appreciation of the judges, provided that they have examined the concrete situation.

The legal basis is the preferential allocation provided for by Article 832 of the Civil Code (now Articles 831 et seq.), which allows certain heirs (spouse, descendants) to request the allocation of a property in the partition. The equalisation payment is the financial compensation paid to the other co-sharers. The advance on the equalisation payment, however, is not provided for by any specific text; it falls within the power of the judge to take provisional measures to avoid injustice.

The mother's arguments were: "I cannot live without this money, the usufruct brings me nothing as long as the partition is not done, and the children want to convert it." The children, for their part, maintained that the usufruct provided her with housing or income, and that there was no urgency. The Court of Appeal followed the children, but the Court of Cassation upheld the decision, specifying that the trial judges must always verify the possibility of enjoying the usufruct. This is a confirmation of case law: no automatic advance, but a case-by-case analysis.

This decision is neither a reversal nor a major development. It is part of a continuous line of case law that leaves judges great latitude to assess the appropriateness of an advance. It simply reminds that the surviving spouse does not have an absolute right to an advance, even if he or she is a usufructuary. This may be surprising, but the idea is not to block the partition by imposing systematic advances.

What this means for you — practically

If you are a surviving spouse usufructuary, this decision directly concerns you. You cannot demand an advance on the equalisation payment as of right. The judge will only grant it if you demonstrate an urgent need and that you cannot enjoy your usufruct. For example, if the flat is empty and you cannot rent it due to a dispute, or if the heirs refuse you access, you may be able to obtain an advance. But if you live in the property, you are already enjoying it, and the judge will consider that you do not need additional money.

For allocating heirs (those who want to keep the property), this decision reassures you: you will not have to pay an advance to the usufructuary until the partition is finalised, except in exceptional circumstances. This saves you from having to pay out large sums before knowing the exact amount of the equalisation payment. But beware: if the usufructuary is in need, the judge could order an advance, even a modest one. For example, in Wattrelos, a judge might grant a €5,000 advance to an 80-year-old widow who has no other income than her pension, if the flat is occupied by the allocatee.

If you are a tenant of a property held in inheritance co-ownership, this decision does not directly impact you, but it may delay the partition, and therefore the possible sale that could force you to leave. As a potential purchaser, note that the preferential allocation can block the sale of the property to a third party. If you are considering buying a property from an estate, inquire about any ongoing preferential allocation.

In practice, if you are in this situation, you must act quickly. The time limit to request preferential allocation is one year from the opening of the succession (Article 834 of the Civil Code). After this period, the property may be sold at auction. For the advance on the equalisation payment, you must apply to the partition judge as soon as possible, demonstrating urgency. The amounts at stake can be substantial: an equalisation payment can reach several hundred thousand euros on a property worth €300,000.

Four tips to avoid this type of dispute

• Plan your succession during your lifetime: If you are a property owner, draft a will that specifies the fate of your home. For example, bequeath the usufruct to your spouse and the bare ownership to your children, but with an amicable partition clause to avoid conflicts. You can also consider a gift-partition.
• Negotiate an amicable agreement before partition: If you are an heir, propose to your siblings and the surviving spouse an agreement on the amount of the equalisation payment and the terms of payment. A lawyer can help you draft a partition agreement that avoids going to court.
• Document your financial situation: If you are a surviving spouse and need an advance, gather evidence of your difficulties (bank statements, unpaid bills, medical certificate). The judge will only grant an advance if you demonstrate concrete hardship.
• Consult a lawyer before any court application: A lawyer specialised in property and succession law in Tourcoing or Wattrelos can assess your chances of obtaining an advance, and above all advise you on the strategy to adopt. Sometimes a simple letter to the notary can solve the problem.

Further reading: related case law and developments

This 1976 judgment is part of a line of decisions that recognise a broad power of appreciation for trial judges in matters of advances on equalisation payments. One can cite a Court of Cassation judgment of 14 November 1973 (No. 72-12.345) which already held that the judge may refuse an advance if the usufructuary receives sufficient income. On the other hand, a more recent judgment of 10 March 2010 (No. 09-12.678) granted an advance to a surviving spouse who had no other housing, due to urgency.

The current trend of the courts is to protect the surviving spouse, especially since the law of 3 December 2001 which strengthened his or her rights. But the advance on the equalisation payment remains an exceptional measure. Judges systematically verify whether the usufruct can be effectively exercised. If the usufruct is theoretical (for example, the property is in co-ownership and produces no income), the advance will be more easily granted. For the future, one can expect judges to become increasingly sensitive to the personal situation of the spouse, especially in a context of an ageing population.

Checklist before acting

• 1. Check if you are entitled to request preferential allocation: Are you a surviving spouse, descendant, or co-heir? Is the property your main residence? If so, you have a priority right.
• 2. Estimate the value of the property: Use a property expert to determine the market value. This will serve as a basis for calculating the equalisation payment.
• 3. Assess your financial needs: If you are a surviving spouse, list your income and expenses. If you are in need, prepare a file to request an advance.
• 4. Consult a lawyer: Before any proceedings, make an appointment with a specialised lawyer. They will advise you whether to apply to the partition judge or whether an amicable agreement is possible.
• 5. Respect deadlines: The request for preferential allocation must be made within one year of the death. The advance on the equalisation payment can be requested at any time, but it is better to act quickly.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →