Inheritance: surviving spouse cannot cumulate gift between spouses and legal rights

Imagine: you are the owner of a family house in Voiron. You and your spouse have saved all your lives. Upon your death, you wish to leave them as much as possible so that they can maintain their lifestyle. You have signed a gift between spouses (also called a gift to the surviving spouse) so that they receive the largest share possible. But your children, from a previous marriage, contest. How far can generosity towards the surviving spouse go?

This question is asked by thousands of families each year. The answer lies in the complex rules of French inheritance law, and notably in a judgment of the Court of Cassation of 25 October 2017 (No. 17-10.644). This decision clarifies a point often misunderstood: in the presence of children, gifts received by the surviving spouse are set off against their legal rights, so that they cannot receive more than the disposable portion (the share that the law allows to be given freely) or limited options in usufruct (right of use and enjoyment).

Concretely, this means that a gift between spouses does not allow everything to be given to the spouse if there are children. The judgment specifies the limits: either the disposable portion in full ownership (the free share), or one quarter in full ownership and three quarters in usufruct, or the entirety in usufruct only. Full analysis, in Voiron as in Saint-Martin-d'Hères.

The facts: a story that happens every day

In this case, a couple married under the legal community regime (without a marriage contract) had three children. The husband, co-owner with his wife of a building in Voiron, had granted his wife, by gift between spouses, the most extensive disposable portion. Upon his death, the surviving wife wished to benefit both from the legal rights that the law reserves for the spouse (for example, one quarter in full ownership) and from the gift. The children considered this accumulation excessive and that the gift should be set off against the legal rights.

The Grenoble High Court initially ruled in favour of the children, holding that the gift was to be set off against the reserved portion (the minimum share guaranteed by law to forced heirs) and not against the disposable portion. The wife appealed. The Grenoble Court of Appeal upheld the judgment. The case then went up to the Court of Cassation.

Before the High Court, the wife argued that the gift between spouses should be set off against the disposable portion and not against the legal rights. The children, on the contrary, argued that the accumulation violated the reserved inheritance (the compulsory share of children). The judgment of 25 October 2017 decides: the gift is set off against the legal rights of the spouse, within the limit of the options provided for by Article 1094-1 of the Civil Code. In clear terms, the spouse cannot cumulate the gift and legal rights to obtain more than the authorised limits.

The reasoning of the court — dissected

The Court of Cassation relies on three key texts of the Civil Code: Article 757 (which sets out the rights of the surviving spouse in the presence of children: either one quarter in full ownership, or usufruct of the entirety, or three quarters in usufruct if the option is exercised), Article 758-6 (which provides that gifts received by the spouse are set off against their legal rights) and Article 1094-1 (which allows the deceased to give the spouse, by gift between spouses, a larger share, but within the limit of the disposable portion).

The reasoning is clear: in the presence of children, the rights of the surviving spouse are capped. If the deceased has made a gift to the spouse, this gift is deducted from what the law already gives them. For example, if the spouse is entitled to one quarter in full ownership, and the gift gives them that same quarter, they cannot receive anything more. In total, the spouse can never exceed the disposable portion (generally half of the assets if one child, one third if two children, one quarter if three or more children) or, at their choice, the usufruct options.

This solution is not a reversal: it confirms previous case law, but it brings an important precision: the set-off is made against the legal rights, and not against the disposable portion. Thus, if the gift is larger than the legal rights, the spouse must choose: either they keep their legal rights and renounce the gift (or reduce it), or they accept the gift within the limit of the caps. The choice must be made within 40 days following the death. Failing that, the gift is reduced to the disposable portion in usufruct.

What this changes for you — concretely

For landlord owners: if you are married and own a rental property in Saint-Martin-d'Hères, know that your spouse cannot cumulate the gift and legal rights to recover the entirety of the property if you have children. They must choose the most advantageous option, but within the limits of the law.

Let's take a numerical example: you own a property valued at €300,000. You have two children. Without a gift, your spouse is entitled to one quarter in full ownership, i.e., €75,000. If you have made a gift of the disposable portion (one third of the assets, i.e., €100,000), they cannot cumulate: they must choose what is most favourable, but without exceeding the cap. Concretely, they could receive €100,000 in full ownership (the gift) but then they lose their legal rights. Or they keep their €75,000 and renounce the gift. The choice depends on their situation.

For tenants: this decision does not directly concern you, but it may impact your lease if the surviving spouse becomes the owner and wishes to sell or give notice.

If you are in the middle of probate proceedings, you must check whether a gift between spouses was made and calculate the rights of each. Notaries are required to respect these rules, but errors are possible. Do not hesitate to ask for a precise breakdown.

Four tips to avoid this type of dispute

• Draft a clear will: if you wish to favour your spouse, a will can specify your intentions and avoid interpretations. Indicate whether you opt for the disposable portion or for usufruct.
• Choose the appropriate matrimonial regime: a universal community with an entire attribution clause can allow the transfer of all assets to the spouse, but beware of the rights of reserved heirs.
• Consult a lawyer or notary before signing a gift: a professional will explain the consequences of the gift between spouses and the available options. In Voiron, make an appointment for an inheritance review.
• In case of death, act quickly: the spouse has 40 days to choose between their legal rights and the gift. After this period, the gift is automatically reduced. Do not delay in consulting.

Further analysis: related case law and developments

This decision is part of a series of recent judgments that strengthen the protection of forced heirs. For example, the judgment of the Court of Cassation of 13 February 2013 (No. 11-28.472) already held that a gift between spouses cannot infringe the children's reserved share. The trend is clear: judges ensure that the surviving spouse does not exceed the legal limits, even in the presence of a gift.

In the future, we can expect notaries to be even more vigilant in calculating rights. For blended families, the risk of litigation remains high. The law of 23 June 2006 already relaxed the rules, but the Court of Cassation continues to clarify the contours. If you are concerned, a consultation with a lawyer specialised in property law in Grenoble will allow you to anticipate.

Frequently asked questions

1. Can I give everything to my spouse if I have children? No. In the presence of children, the gift between spouses is limited to the disposable portion (half, third or quarter depending on the number of children) or to usufruct options.
2. What is the deadline for the spouse to make their choice? 40 days from the death. Failing that, the gift is reduced to the disposable portion in usufruct.
3. What happens if the gift exceeds the legal rights? The spouse must choose: either they keep their legal rights, or they accept the gift within the limit of the caps.
4. Does this rule apply to PACS partners? Yes, since the law of 23 June 2006, PACS partners have limited inheritance rights, but gifts between them are also subject to these rules.
5. Can a child contest a gift between spouses? Yes, if they consider that their reserved inheritance is affected. They must act within 5 years of the death.

Do you find yourself 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 →