"Article 917 Option: Usufruct Bequest for Forced Heirs in French Law"

Imagine: you are in Antibes, in a notary's office, settling your father's estate. He bequeathed to his partner the usufruct of his villa and some furniture in full ownership. You, as a reserved heir, wonder whether this legacy exceeds the share that the law guarantees you. You have heard of an option: to abandon the disposable portion to the legatee in order to keep the rest. But is it that simple?

The question every property owner asks: can I choose to give up part of the inheritance to avoid a conflict? The answer is not always what one might imagine. Article 917 of the Civil Code offers this option, but only for legacies of usufruct. And if the legacy mixes usufruct and full ownership, the door closes.

A decision of the Court of Cassation of 3 March 1992 (No. 90-16.201) clarifies this point with a strictness that may be surprising. The judges refused the option to heirs who wanted to abandon the disposable portion because the legacy included both a property in usufruct and furniture in full ownership. Let us decipher this story and what it means for you.

The Facts: An Everyday Story

Marcel Z..., a property owner in Roquebrune-Cap-Martin, made a holographic will on 5 April 1983. He bequeathed to Mrs Geneviève A... the usufruct of his villa and the full ownership of some furniture. Upon his death, his reserved heirs – his children – discovered that the value of the usufruct exceeded the disposable portion (the part of the estate that the deceased could freely allocate, the rest being reserved for the heirs).

The heirs decided to exercise the option provided for in Article 917 of the Civil Code: they abandoned the disposable portion to Mrs A... (i.e., they left her the part of the legacy that exceeded their reserved rights) and kept the surplus. In return, they sought compensation for the loss of their rights. But the legatee contested: according to her, the option under Article 917 did not apply when the legacy covered both usufruct and full ownership assets.

The case came before the Court of Appeal, which ruled in favour of the heirs. For the judges, since the main legacy was in usufruct, the option was available. But the Court of Cassation overturned this decision. It recalled that Article 917 is an exception, which must be interpreted strictly: it applies only to legacies exclusively in usufruct. As soon as the legacy mixes usufruct and full ownership, the option disappears.

The Court's Reasoning – Analysed

The legal basis is Article 917 of the Civil Code (in its version then in force). This provision states: "Where a legacy consists of a usufruct whose value exceeds the disposable portion, the reserved heirs may choose either to execute the gift or to abandon the disposable portion." In clear terms, if the deceased bequeaths an excessive usufruct, his heirs can choose: either they execute the legacy (and lose part of their reserved share) or they abandon the disposable portion (and the legatee keeps everything, but the heirs are compensated).

However, the Court of Cassation specifies that this option is an exception to the general law of the reserved share. It cannot be extended to other situations. In this case, the legacy was not a simple usufruct: it also included furniture in full ownership. The judges considered that the option can only be exercised if the legacy is exclusively in usufruct. Why? Because calculating the disposable portion and the compensation becomes too complex when the two types of assets are mixed. The text is clear, leaving no room for interpretation.

The Court of Appeal had nevertheless considered that the main legacy was the usufruct and that the furniture was ancillary. But the Court of Cassation did not follow this reasoning: regardless of the relative importance, as soon as there is an element in full ownership, Article 917 is inapplicable. This is a strict reading, but logical: the legislator intended a simple rule, not a mathematical puzzle.

What This Means for You – Practically

For property owners planning their succession: if you wish to bequeath a usufruct to your spouse or a third party, ensure that the legacy covers only the usufruct. If you add any assets in full ownership (even of low value), you deprive your heirs of the option under Article 917. They will then have to endure the legacy without being able to adjust it. Example: in Roquebrune-Cap-Martin, a villa worth €800,000, with a usufruct valued at €500,000 and a disposable portion of €300,000. If you bequeath only the usufruct, your children can abandon the disposable portion. If you add furniture worth €10,000 in full ownership, the option disappears.

For reserved heirs: if you are faced with a mixed legacy (usufruct + full ownership), you cannot invoke Article 917. You will either have to accept the legacy or challenge its validity on the grounds that it infringes your reserved share, but through other means (action for reduction). Note that this action is subject to a 5-year limitation period from the opening of the succession.

For notaries and wealth management advisors: the drafting of wills must be precise. A legacy of usufruct must be pure, without any addition of full ownership, to preserve the flexibility offered by Article 917. Otherwise, you risk creating unnecessary litigation.

Four Tips to Avoid This Type of Dispute

• Draft a clear and separate will: if you wish to bequeath a usufruct and assets in full ownership, make two separate legacies in distinct clauses. Thus, the option under Article 917 can apply to the usufruct legacy alone.
• Assess the disposable portion before bequeathing: have your estate valued by a notary. Calculate the reserved share for your heirs and the disposable portion. Ensure that the value of the usufruct does not exceed this portion to avoid any conflict.
• Inform your heirs of their rights: explain to them the existence of the option under Article 917 and its limitations. Transparent communication prevents surprises and lawsuits.
• Consult a lawyer specialising in inheritance law: before drafting a complex will, seek advice. A professional will help you structure your gifts so that they are valid and respect everyone's rights.

Further Reading: Related Case Law and Developments

The Court of Cassation has confirmed this position in other decisions. For example, a decision of 14 January 1997 (No. 95-11.123) held that the option under Article 917 also does not apply to a legacy of bare ownership. The trend is therefore towards a restrictive interpretation: only legacies of pure usufruct open the option.

This case law has been criticised by some authors, who see it as excessive rigidity. Why deprive heirs of an option when the mixed legacy is predominantly in usufruct? But the Court of Cassation stands firm: the letter of the law is clear, and it is up to the legislature to amend it if it wishes. To date, no reform has been enacted.

For the future, be vigilant: if you are an heir of a mixed legacy, do not rely on Article 917. You will have to use other mechanisms, such as the action for reduction for infringement of the reserved share, which is more burdensome and less flexible.

In Practice: What to Do

Checklist for heirs facing a mixed legacy:

1. Identify the nature of the legacy: usufruct only or mixed (usufruct + full ownership)? Check the will.
2. Assess the disposable portion: ask a notary to calculate the reserved share and the disposable portion, based on the value of the usufruct.
3. If mixed legacy: the option under Article 917 is excluded. You must either accept the legacy or bring an action for reduction within 5 years.
4. If pure usufruct legacy: you can choose between performance and abandonment of the disposable portion. Calculate the compensation due by the legatee in case of abandonment.
5. Consult a lawyer to choose the best strategy, especially if the dispute is complex.

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