Gift between Remarried Spouses: Rights of Children from First Marriage According to the Court of Cassation

Imagine the scene: in Vitry-le-François, a widowed father remarries. He wishes to protect his new wife and leaves her, by will, a quarter of his assets in full ownership and the remaining three quarters in usufruct (the right to use the assets and receive income from them without being the owner). Upon his death, his children from the first marriage contest: they consider that this bequest exceeds what the law allows. The question that troubles every remarried owner with children from a previous union: how far can you favour your new spouse without disinheriting your own children?

This decision of the Court of Cassation of 4 October 1988 (No. 87-11.916) answers that question by setting the limits of Article 1098 of the Civil Code. This article, which allows children from the first marriage to substitute for the gift made to the second spouse the abandonment of the usufruct of their inheritance share, applies only to gifts of ownership and within the limits of the ordinary disposable portion. In other words, children cannot use this mechanism to reduce the share of the surviving spouse when the latter benefits from the enhanced disposable portion provided for in Article 1094-1 of the Civil Code (which can reach one quarter in ownership and three quarters in usufruct).

Concretely, a remarried spouse can therefore freely choose to give to his second spouse one quarter in full ownership and three quarters in usufruct, without the children from the first marriage being able to demand the abandonment of the usufruct of their share. This solution, which may be surprising, protects the surviving spouse while maintaining a balance with the rights of the children. But how to navigate this maze of texts? Let's decode this decision step by step.

The Facts: A Story Like Those That Happen Every Day

Mr. X, a property owner in Épernay, dies leaving as heirs his two children from a first marriage and his wife, his second wife. By will, he had bequeathed to his wife the largest disposable portion between spouses, that is, according to Article 1094-1 of the Civil Code, the option to choose between one quarter in full ownership and three quarters in usufruct, or the entirety in usufruct. Using this option, the wife chose one quarter in ownership and three quarters in usufruct.

The children from the first marriage, considering that this gift exceeded what the law allowed, sued their stepmother before the Tribunal de Grande Instance. They relied on Article 1098 of the Civil Code, which, in its wording resulting from the law of 13 July 1963, allowed children from the first marriage, in the event of a gift or bequest of ownership to the second spouse, to substitute for the execution of that gift the abandonment of the usufruct of the share of the inheritance they would have received in the absence of a surviving spouse. In short, they proposed to let their stepmother enjoy the usufruct of the assets, but claimed full ownership for themselves, arguing that the bequest of ownership was excessive.

The trial court ruled in their favour, but the Court of Appeal reversed that judgment, paving the way for an appeal to the Court of Cassation. The children argued that Article 1098 should apply regardless of the form of the gift (ownership or usufruct) and that the disposable portion in favour of the surviving spouse could only be the ordinary one (one quarter in ownership or half in usufruct). The stakes were high: if their reasoning had been followed, the second spouse could only have received one quarter in ownership – and even then, the children could have demanded to convert that quarter into usufruct, drastically reducing the widow's rights.

The Reasoning of the Court — Explained

The Court of Cassation dismissed the children's appeal, affirming the decision of the Court of Appeal. Its reasoning revolves around the combined interpretation of Articles 1098 and 1094-1 of the Civil Code. Article 1098 provides that when a remarried spouse has made a gift of ownership to his second spouse, each child from the first marriage may, unless the deceased has expressed an unequivocal contrary intention, substitute for the execution of that gift the abandonment of the usufruct of the share they would have received without a surviving spouse. But the Court specifies that this text applies only in cases where the gift was made within the limits of the ordinary disposable portion (that of Article 913, i.e., one quarter in ownership or half in usufruct).

However, since the law of 3 December 2001, Article 1094-1 offers the surviving spouse a broader disposable portion: he or she may receive, at the choice of the testator, either the entirety in usufruct, or one quarter in full ownership and three quarters in usufruct, or full ownership of the ordinary disposable portion. The High Court asserts that Article 1098 cannot have the effect of depriving the second spouse of this enhanced disposable portion. In other words, children from the first marriage cannot use the substitution mechanism provided for in Article 1098 to reduce the share of the surviving spouse when the latter benefits from the disposable portion under Article 1094-1.

The Court also relies on the intention of the deceased, who had clearly chosen in his will to give his wife the largest disposable portion. It recalls that the substitution provided for in Article 1098 is only available to children if the testator has not manifested an unequivocal contrary intention. In this case, the testator's express choice to give his wife one quarter in ownership and three quarters in usufruct demonstrated his intention to favour her to the maximum, thus excluding any substitution. The lower courts had therefore correctly interpreted the deceased's intention.

What This Changes for You — Concretely

For remarried property owners with children from a first marriage, this decision is good news. You can without fear bequeath to your new spouse up to one quarter in full ownership and three quarters in usufruct, without your children being able to demand the conversion of this bequest into usufruct only. Let's take a concrete example: you own a property in Épernay worth €300,000. If you bequeath to your wife one quarter in ownership (€75,000) and three quarters in usufruct (€225,000 in value, but the usufruct is valued according to the spouse's age), your children will inherit the bare ownership of the surplus. They cannot force you to reduce this bequest to a simple usufruct over the entirety. However, be careful: if you wish to go beyond this portion, for example by giving full ownership of the entirety, your children may then invoke Article 1098 to request reduction.

For children from the first marriage, this decision limits their possibilities of challenge. If the deceased clearly manifested his intention to favour his second spouse within the limits of Article 1094-1, they cannot demand the substitution of usufruct. But they retain rights over the reserved portion (the hereditary reserve) which cannot be infringed. For example, if the deceased has two children, his reserve is two-thirds; the spouse can therefore only receive the remaining third, and only within the limits of the disposable portions between spouses.

Finally, for real estate professionals (notaries, wealth management advisors), this case law reminds of the importance of drafting clear wills, expressing unequivocally the testator's intention. A simple mention of the enhanced disposable portion may suffice to exclude Article 1098, but it is better to specify it.

Four Tips to Avoid This Type of Dispute

• Draft a clear and unequivocal will: expressly state that you wish your spouse to benefit from the largest disposable portion provided for in Article 1094-1 (for example: "I bequeath to my wife the maximum disposable portion between spouses, i.e., one quarter in full ownership and three quarters in usufruct"). This will remove any ambiguity and prevent your children from invoking Article 1098.
• Inform your children of your intentions: open communication can avoid future disputes. Explain to them that you wish to protect your spouse, but that their hereditary reserve is preserved.
• Consult a notary or a specialised lawyer: before drafting a will or making a gift, seek advice. A professional can help you optimise the transfer while respecting everyone's rights. If you are in Vitry-le-François or Épernay, Maître Zakine can see you for a consultation.
• Consider a gift to the surviving spouse (donation au dernier vivant): this notarial deed allows you to organise the succession during your lifetime and choose the most favourable option for the surviving spouse, while respecting the children's rights. It is a powerful tool to secure the situation.

Further Insights: Related Case Law and Developments

This 1988 decision is part of a line of judgments that have progressively strengthened the rights of the surviving spouse. Before the law of 3 December 2001, the spouse had only a life interest in the family home and a limited inheritance entitlement. Article 1094-1 considerably expanded his or her rights, and the Court of Cassation has ensured that this expansion is not reduced by protective mechanisms for children, such as Article 1098.

We can cite an earlier decision of the Court of Cassation of 14 March 1979 (No. 77-14.252) which, in a similar context, already limited the application of Article 1098 to gifts of ownership. The trend is therefore consistent: judges protect the testator's freedom and the enhanced disposable portion, while recalling that Article 1098 remains applicable when the gift exceeds that portion or when it is made in full ownership.

For the future, we can expect case law to continue refining the contours of this protection. In particular, the question of successive usufruct or cross-generational gifts may give rise to new decisions. In the meantime, this decision provides legal certainty for remarried couples.

What You Must Absolutely Remember

FAQ:

1. Can I bequeath to my second spouse the entirety of my assets in usufruct? Yes, that is one of the options under Article 1094-1. Your children will inherit the bare ownership, and your spouse can use the assets and receive income from them until his or her death.

2. Can my children from the first marriage oppose this bequest? No, if it is within the limits of the enhanced disposable portion and your intention is clear. They cannot demand the substitution of usufruct provided for in Article 1098.

3. What happens if I bequeath more than the disposable portion? Your children can then request the reduction of the gift to reach the authorised portion. Article 1098 could also apply if the gift is one of ownership.

4. Do I necessarily have to go through a notary? For a will, it is not mandatory, but strongly recommended. A holographic will (written, dated, and signed by your own hand) is valid, but it can be contested. A notarial will (drawn up by a notary) offers greater security.

5. What is the difference between usufruct and bare ownership? Usufruct is the right to use an asset and receive income from it (rent, etc.). Bare ownership is the right to dispose of the asset (sell it, give it away) but without having the use of it. The usufructuary and the bare owner have complementary rights.

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