Reference decision: cc • N° 19-14.421 • 2020-11-04 • See the decision →
Imagine: you live in Saint-Estève and you inherit the usufruct of a bank account. You can use this money, that is the principle. But what happens at the end of the usufruct? Do you have to repay everything? And if you die before the end, are your heirs obliged to return the sums?
This is the question put to the Court of Cassation in a case involving families from the Pyrénées-Orientales. The answer is one word: yes. The usufructuary (the person who has the right to use the assets) must return the value of the sums of money at the end of the usufruct, and his heirs are also bound.
This decision, handed down on 4 November 2020, clarifies Article 587 of the Civil Code. It directly concerns owners, heirs and property professionals. Let us break it down.
The facts: a story that happens every day
Mrs Q... dies, leaving her husband, Mr O..., as usufructuary of bank accounts. The bare owners (those who have the bare ownership, i.e. ownership without the use) are the couple's children. Mr O... freely uses the sums for years. On his death, his own heirs (universal legatees) recover what remains. But Mrs Q...'s children consider that Mr O...'s heirs must return the value of the accounts as at the date of the usufructuary's death.
The dispute comes before the Montpellier Court of Appeal, which rules in favour of the bare owners. The usufructuary's heirs are ordered to pay. The latter appeal to the Court of Cassation, arguing that Article 587 of the Civil Code does not provide for such an obligation for heirs.
The Court of Cassation dismisses their appeal. It confirms that the debt of restitution binds the usufructuary's heirs, because it arose during his lifetime. A logical decision, but one which has been debated in law firms in Perpignan and elsewhere.
The reasoning of the court — broken down
The Court of Cassation relies on Article 587 of the Civil Code. This provision states that "where the usufruct relates to things which are not consumed by use, the usufructuary may use them but must return them in kind". For sums of money, the rule is special: the usufructuary may use them, but must return, at the end of the usufruct, their value estimated at the date of restitution.
Why? Because money is a fungible thing (which is consumed). The usufructuary becomes its owner, but he has a debt of value towards the bare owner. This debt arises from the opening of the usufruct.
In this case, Mr O... had the usufruct of the accounts. On his death, the usufruct was extinguished. The bare ownership then "merged" into full ownership in favour of Mrs Q...'s heirs. But Mr O...'s heirs kept the sums. The Court of Appeal held that they had to return the value of the accounts as at the date of the usufructuary's death.
The Court of Cassation validates this reasoning: the debt of restitution is transmitted to the heirs, like any inheritance debt. It does not matter that the usufructuary used the money: the bare owner's claim subsists.
This solution is not a reversal: it is consistent with previous case law. But it forcefully reminds that usufruct of money is not a gift, but a temporary right coupled with an obligation to return.
What this changes for you — concretely
If you are a usufructuary of a bank account, you may use the funds freely. But at the end of the usufruct (on your death or the agreed term), your heirs will have to repay the updated value of the sums. For example, if you have the usufruct of an account of €100,000 for 10 years, and you have spent it all, your children will have to pay €100,000 (plus inflation) to your spouse's children.
If you are a bare owner, you have an interest in monitoring the evolution of the accounts. At the end of the usufruct, you can claim the updated value. Warning: if the usufructuary is your spouse, his or her death opens your right. But if the usufructuary dies before you, it is his or her heirs who will have to pay you.
Take a concrete example in Cabestany. Mr and Mrs Dupont are married. Mr Dupont dies, leaving his wife the usufruct of their joint account of €150,000. Mrs Dupont uses the money to live. On her death, her heirs (her children from a first marriage) will have to return €150,000 (updated value) to Mr Dupont's children. Without this decision, Mr Dupont's children could have lost everything.
For property professionals, this decision is crucial in inheritances. A notary must inform the parties of the consequences of usufruct on bank accounts. A lawyer specialised in property law in Perpignan will advise you to document the movements precisely.
Four tips to avoid this type of dispute
- Have the accounts inventoried from the opening of the usufruct. A quantified inventory (bank statements, contracts) avoids later disputes.
- Keep all annual statements. The usufructuary must be able to justify the use of the funds. In the event of death, his heirs will need these documents.
- Draw up a usufruct agreement. With the help of a notary, specify the terms of restitution: date, estimated value, indexation. This avoids differing interpretations.
- Anticipate the transmission. If you are a bare owner, you can ask the usufructuary to take out a life insurance policy to guarantee the restitution. Talk to your adviser.
Further reading: related case law and developments
This decision is part of a consistent line. In a judgment of 10 July 2019 (no. 18-18.754), the Court of Cassation had already held that the usufructuary of sums of money must return their value at the date of restitution, even if the funds have been invested.
On the other hand, the question of interest is not settled. If the usufructuary invests the money and receives interest, does that belong to him? Academic opinion is divided. Some consider that the interest is the fruit of the usufruct, others that it should be capitalised for the restitution.
Another recent decision (Civ. 1ère, 17 March 2021) specifies that the usufructuary may make a gift of the sums, but the debt of restitution subsists. So, even if the money is given away, the heirs will have to pay.
The trend is clear: the judges protect the bare owner. The usufructuary must not impoverish the bare owner. This protection has been strengthened since the 2000s.
Frequently asked questions
Q: Does the usufructuary have to return exactly the same notes?
R: No. He must return the equivalent value, estimated at the date of restitution. It is a debt of value, not a debt of a thing.
Q: What if the usufructuary has squandered the money without leaving any trace?
R: His heirs remain bound. They will have to prove that the money was used in accordance with the usufruct. Failing that, they will have to pay from their own assets.
Q: Can I renounce the usufruct to avoid this obligation?
R: Yes, you can renounce the usufruct by notarial deed. But be careful: renunciation is final and may have tax consequences.
Q: Are joint accounts concerned?
R: Yes, if the usufruct relates to the deceased's share in the joint account. The ownership of the funds must be distinguished.
Q: Is there a time limit to claim restitution?
R: The limitation period is five years from the end of the usufruct. After this period, the action is time-barred.
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 →
📌 Does this apply to your situation? Maître Cécile Zakine, French real estate lawyer, practises throughout France.
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