Article 917 Option: Can the Judge Block Everything? (56)

Imagine: you inherit a property in Cesson-Sévigné, but your parent's will leaves the usufruct (the right to use the property and receive its income) to their spouse, while you, the child, only have the bare ownership (ownership without the right of use). You wonder: can I challenge this legacy if it exceeds the share that the law reserves for heirs? And above all, do I have time to think before choosing between reducing the legacy or accepting it? This 1981 decision of the Court of Cassation answers a crucial question: can the judge impose a time limit for exercising this option? The answer is yes, and it has concrete consequences for owners and heirs.

In inheritance law, Article 917 of the Civil Code offers an option to reserved heirs (those entitled to a minimum share of the estate): when the deceased has left a usufruct or a life annuity to a third party, the heir may choose either to execute the legacy in kind (leave the usufruct) or to pay its value in cash. But until when? The Code is silent. Result: deadlock situations where an heir delays, preventing the final partition.

In the case decided by the Court of Cassation, a testator had left to his partner the usufruct of all his property. The reserved heirs (his children) sought reduction of the legacy to the usufruct of the disposable portion only (the share that the deceased could freely allocate). The court ordered a partition and set a deadline for the heirs to exercise their option. The Court of Cassation upheld: nothing prevents the judge from imposing a deadline. A common-sense decision that avoids endless proceedings.

The Facts: A Story That Happens Every Day

Mr. Y, owner of a house in Bruz (Ille-et-Vilaine), died in 1975. By holographic will (written in his own hand), he left to his partner, Mrs. Z, the usufruct of all his property. His two children from a previous marriage are his reserved heirs: the law guarantees them a minimum share (the reserved portion), here two-thirds of the property in ownership. However, the legacy of the usufruct of all property exceeds the disposable portion (the third that the deceased could freely allocate). The children sue Mrs. Z to reduce the legacy to the usufruct of the disposable portion only, i.e., one-third in usufruct.

The Tribunal de Grande Instance of Rennes, in 1977, ruled in favour of the children: it ordered the liquidation and partition of the estate and set a deadline of three months for the heirs to exercise the option under Article 917. Mrs. Z appealed: according to her, no time limit is provided by law, and the judge cannot impose one. The Court of Appeal of Rennes, in 1979, upheld the judgment. Mrs. Z appealed to the Court of Cassation.

The question put to the Court of Cassation was therefore: can the judge who orders the account, liquidation and partition operations impose a deadline for exercising the option under Article 917? The affirmative answer of the Court, on 7 January 1981, ended a legal uncertainty that had lasted for years.

The Reasoning of the Court — Analysed

The Court of Cassation, in its judgment, first recalls the principle: "While it is true that no time limit is assigned for the exercise of the option under Article 917 of the Civil Code, nothing prevents the court that has ordered the account, liquidation and partition operations from assigning deadlines." In other words, the law is silent, but the judge can fill this gap to ensure the smooth progress of the partition.

The reasoning relies on the powers of the judge in matters of partition. Article 917 of the Civil Code (in its version then in force) provides: "The reserved heir who renounces reduction may execute the legacy in kind or abandon its value." The law does not specify a time limit, but the Court considers that the judge, charged with liquidating the estate, has the power to set a term to prevent the option from paralysing the procedure. This is an application of the principle of good administration of justice.

This decision is neither a reversal nor a major development: it confirms a previous practice of the courts. But it has the merit of clarifying a grey area. Mrs. Z's arguments (absence of text, freedom of the heir) were dismissed in favour of a pragmatic interpretation: the time limit is a procedural modality, not a restriction on the right of option. The Court thus upheld the decision of the Rennes judges, who had set a three-month deadline, considered reasonable.

What This Changes for You — Concretely

For reserved heirs (children, surviving spouse in certain cases), this decision means that you cannot drag out your choice indefinitely. If you are in a situation similar to Bruz, where a usufruct legacy exceeds the disposable portion, the court may impose a deadline (generally 2 to 4 months) to opt. After this deadline, you could lose the possibility of reducing the legacy or be forced to execute it in kind.

For legatees (those who receive the usufruct), it is a security: they know that the situation will be resolved quickly. Concrete example: in Cesson-Sévigné, a widow is left the usufruct of a flat with a rental value of €800 per month. The children, reserved heirs, consider that the legacy exceeds the disposable portion (the deceased could give at most one-third of his property in usufruct). The court sets a deadline of 3 months for the children to choose: either they leave the usufruct in kind (the widow keeps the flat for life), or they pay the capitalised value of the usufruct (approximately €50,000 for a 70-year-old woman). Without a deadline, the children could wait for years, blocking the sale or enjoyment of the property.

For real estate professionals (notaries, lawyers), this case law is a tool: during a complex inheritance partition, you can ask the judge to set a deadline for the option, thereby speeding up the closure of the estate.

Four Tips to Avoid This Type of Dispute

• Anticipate the drafting of your will: If you wish to leave a usufruct to your spouse or a third party, ensure you do not exceed the disposable portion. In Cesson-Sévigné, a notary can help you calculate the reserved share of your children and limit the legacy to the usufruct of the disposable portion.
• Act quickly if you are an heir: As soon as you become aware of a usufruct legacy, do not delay consulting a lawyer specialising in inheritance law. The court may impose a short deadline. In Bruz, an heir who waited 6 months was forced to accept the legacy in kind.
• Document the value of the assets: To assess whether the legacy exceeds the disposable portion, the usufruct must be valued. Have a property valuation carried out by an agent or notary, and calculate the value of the usufruct according to the tax scale (based on the age of the usufructuary).
• Negotiate amicably: Before going to court, try to reach an agreement between heirs and legatee. For example, the legatee may agree to receive a life annuity rather than a usufruct, or the heirs may buy out the usufruct. This avoids costs and judicial delays.

Further Reading: Related Case Law and Developments

This 1981 decision is part of a consistent line. Already, in a judgment of 24 February 1975 (No. 73-13.645), the Court of Cassation had admitted that the judge could set a deadline for exercising the option in matters of hotchpot. More recently, the Court clarified that the option under Article 917 may be exercised at any time before the final partition (Civ. 1st, 12 July 2012, No. 11-18.145), but nothing prevents the judge from imposing a cut-off date.

The trend of the courts is therefore clear: favour the speed of inheritance partitions. If you are an heir, do not rely on the absence of a statutory time limit to gain time: the judge can set one. Conversely, if you are a legatee, you can obtain from the court that the option be lifted quickly, to know where you stand.

Checklist Before Taking Action

• Check if you are a reserved heir: In the absence of a surviving spouse, children are reserved heirs. Their reserve is half, two-thirds, or three-quarters of the assets depending on the number of children.
• Calculate the disposable portion: This is the share that the deceased can freely allocate. Example: for an estate of €300,000 and two children, the disposable portion is €100,000 (one-third).
• Value the usufruct bequeathed: Use the scale of Article 669 of the General Tax Code. For a usufructuary aged 60, the usufruct is worth 40% of full ownership.
• Consult a lawyer: Before exercising the option, a lawyer specialising in property and inheritance law can advise you on the best strategy (reduction or execution in kind).

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 →