Inheritance and the Second Spouse: the Option of Children from a First Marriage in the Face of a Legacy of Usufruct

Imagine: you are the owner of a house in Dombasle-sur-Meurthe, you have remarried after a first marriage, and you wish to leave part of your estate to your new spouse. But your children from the first marriage also have rights. What happens if the legacy encroaches on their reserved portion (the minimum share guaranteed by law)? Can you freely choose who inherits what?

This question arises for hundreds of families each year. The law attempts to balance interests: protecting the surviving spouse while respecting the children's rights. The judgment of 3 June 1986 from the French Supreme Court clarifies a little-known but crucial option: that offered to children from the first marriage to substitute for the legacy made to the second spouse the abandonment of the usufruct (the right to use a property and receive its income without being the owner) of their inheritance share.

In short, the children may choose not to execute the legacy in ownership, but to let the surviving spouse enjoy the property for life. A solution that reconciles the deceased's wishes with the protection of the forced heirs (those entitled to a minimum share). Analysis.

The facts: a story like many others

Mr. X, a widower and father of two, remarries Mrs. Y in Pont-à-Mousson. Anxious to secure his new wife's future, he draws up a will by which he leaves to his second wife everything the law allows him to give: one quarter in full ownership and three quarters in usufruct. On his death, the children from the first marriage face a delicate situation: the legacy reduces their inheritance share. But the law offers them an option: they may, instead of executing the legacy, abandon the usufruct of their share of the inheritance in favour of Mrs. Y.

The children hesitate: accepting the legacy in full ownership means losing part of their rights; abandoning the usufruct means having to wait until the spouse's death to freely dispose of the property. They consult a lawyer, who informs them of Article 1098 of the Civil Code (which allows this substitution). Finally, they opt for the abandonment of the usufruct, in order to respect their father's wishes while preserving their future rights.

The case goes to court because the wife contests this choice, arguing that the children could not unilaterally modify the legacy. The Nancy Court of Appeal rules in favour of the children, and the French Supreme Court confirms in 1986. The reasoning is clear: Article 1098 grants this faculty to children, unless the testator expressed a contrary intention that is unequivocal (clear and unambiguous). Here, Mr. X had not forbidden this option.

The court's reasoning — broken down

The French Supreme Court relies on Article 1098 of the Civil Code, as amended by the law of 13 July 1963. This text allows children from a first marriage, in the presence of a surviving spouse, to substitute for the execution of the gift (donation or legacy) made to the second spouse the abandonment of the usufruct of the inheritance share they would have received in the absence of a spouse. In other words, they can say: "We accept that you keep the usufruct of our share, but we retain the bare ownership (ownership without the right of use)."

But note: this option is only available if the gift was made within the limits of the disposable portion (the part the deceased may freely give) in ownership. However, here the legacy was for one quarter in ownership and three quarters in usufruct, i.e., a mixed gift. The Court specifies that Article 1098 cannot have the effect of depriving the second spouse of the disposable portion to which he or she is entitled under Article 1094-1 (which sets the maximum share that can be given to the surviving spouse: one quarter in ownership and three quarters in usufruct).

In other words, if the deceased left only ownership (e.g., one quarter in full ownership), the children may opt for the abandonment of the usufruct. But if the legacy combines ownership and usufruct, the option applies only to the ownership portion. The Court therefore validates the children's choice: they abandoned the usufruct of their share, which corresponds to the portion of the gift made in ownership. This interpretation confirms previous case law, which protects the balance between forced heirs and the surviving spouse.

What this means for you — practically

For landlord owners: if you are remarried and wish to protect your spouse, know that your children from the first marriage may, after your death, choose not to execute your legacy in ownership. They can 'replace' you by abandoning the usufruct of their share. This means your spouse can continue to occupy the home or receive the rents, but without becoming the owner. On the spouse's death, the children regain full ownership.

Concrete example: in Dombasle-sur-Meurthe, an owner leaves a flat in full ownership to his second wife. The children from the first marriage may decide to abandon to the wife the usufruct of their inheritance share (e.g., half of the flat). The wife can live in it or rent it out, but on her death, the children become full owners of the entirety. If you are in this situation, you should consult a notary to assess the options and, above all, draft a clear will if you wish to exclude this possibility.

For tenants: this does not directly concern you, but if you rent a property belonging to an estate, know that the situation can be complex. The surviving spouse may have the usufruct, and the children the bare ownership. In practice, the spouse receives the rents, but the children must be informed of the leases.

For buyers: if you buy a property in usufruct or bare ownership as part of an inheritance, beware of the rights of children from a first marriage. The option under Article 1098 can change the distribution. Always check the existence of a will and the seller's family situation.

Four tips to avoid this type of dispute

• Draft a clear will: if you do not want your children from the first marriage to have the faculty to substitute the usufruct, mention it expressly. For example: "I leave to my spouse one quarter in full ownership, and I forbid my children from exercising the option under Article 1098." An unequivocal wish is enough to block the option.
• Consult a notary before making a legacy: a professional can calculate the disposable portion and advise you on the best distribution between ownership and usufruct. In Pont-à-Mousson, make an appointment with a notary specialised in inheritance law.
• Inform your children of your intentions: open dialogue avoids many conflicts. Explain why you wish to protect your spouse, and discuss possible options. This may dissuade them from exercising the substitution option.
• In case of conflict, refer the matter to the judicial court: if your children contest the legacy or if your spouse opposes the option, legal action may be necessary. But favour family mediation before incurring costs.

Further details: related case law and developments

This 1986 decision is part of a consistent line of authority. An earlier 1978 ruling (Civ. 1re, 7 March 1978) had already established the principle that the option under Article 1098 is available even in the case of a legacy of ownership and usufruct, provided that the gift exceeds the special disposable portion. More recently, the French Supreme Court recalled in 2015 (Civ. 1re, 14 October 2015) that the contrary intention of the donor must be express and unequivocal.

The trend is therefore towards protecting the surviving spouse, while leaving some leeway for children. The courts carefully scrutinise the drafting of the will: a simple ambiguous phrase may suffice to open the option. Conversely, a clear prohibition closes it definitively. For the future, the law of 23 June 2006 strengthened the rights of the surviving spouse, but Article 1098 remains applicable. Real estate professionals must therefore be vigilant during inheritance divisions.

What you absolutely must remember

1. What is the option under Article 1098? It is the possibility for children from a first marriage to abandon the usufruct of their inheritance share to the second spouse, instead of executing the legacy in ownership.

2. Who can exercise it? Only children from the first marriage, and only if the deceased was remarried. The surviving spouse cannot impose this option.

3. Can I prohibit it? Yes, by drafting a will where you clearly express your contrary wish. Example: "I forbid my children from exercising the option provided for in Article 1098."

4. What are the time limits? The option must be exercised within the framework of the succession, generally within 5 years of the death (limitation period for the action for partition).

5. What should I do if I am affected? Consult a lawyer specialised in inheritance law in Nancy or your region. An initial analysis of your situation can save you years of litigation.

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