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Family Law: Succession of the Surviving Spouse

Family Law Succession of the Surviving Spouse

 – Succession of surviving spouse: without descendants and ascendants

 – Succession of surviving spouse: with descendants

 – Succession of the surviving spouse: when there are parents

 – Where to go for professionals legal advice?

In the presence of a surviving spouse, the estate is divided between the descendants, the ascendants and the spouse.

Single man in profile

Family Law Succession of the Surviving Spouse

The death causes the opening of the succession. To calculate the estate, it is first necessary to identify the heirs.

In the absence of any provisions by the deceased, the devolution of the succession is said to be “intestate”: without a will.

A distinction must be made between succession in the presence of a surviving spouse and succession in the absence of a surviving spouse.

The law is even different for an inheritance in the case of a civil union or cohabitation.

Inheritance of a surviving spouse: without descendants and ascendants

In the absence of descendants (children and grandchildren) and ascendants (parents), the surviving spouse inherits the deceased spouse’s entire estate.

Therefore, the surviving spouse excludes from the estate: grandparents, brothers and sisters, and ordinary collateral relatives of the deceased. There are, however, two exceptions.

The succession of the surviving spouse: the right of return

When the deceased spouse leaves brothers and sisters, they can claim the return of half of the deceased’s family property. These are assets received by the spouse from his parents during the marriage: paintings, real estate, etc.

Note: the right of return only applies when the said family property remains in kind in the deceased’s inheritance (he must not have sold it).

The surviving spouse and the brothers and sisters are joint owners (undivided inheritance).

Another exception: grandparents’ support payments

When the deceased spouse leaves behind their grandparents, the grandparents can demand that the surviving spouse pay alimony. This is deducted from the estate. The benefit of the alimony is only in favour of the grandparents who are in need.

The succession of the surviving spouse: with descendants

Family Law Succession of the Surviving Spouse

If there are descendants, the surviving spouse shares the deceased spouse’s estate with the descendants.

Children born to both spouses: what succession of the surviving spouse?

When all the descendants are born to both spouses, the surviving spouse can choose to inherit

 – the entire estate in usufruct;

 – or ¼ in full ownership.

The children therefore receive:

 – either bare ownership of the entire estate (they will inherit full ownership upon the death of the surviving parent);

 – or ¾ of the total ownership.

The option must be taken out within 3 months of the death: otherwise, the surviving spouse automatically receives the full usufruct.

In addition, the surviving spouse benefits from the preferential allocation of the family home: he/she can stay there, regardless of the option chosen. The surviving spouse has one year to express his/her wish to benefit from his/her legal right to remain in the home for the rest of his/her life.

Please note: this expression of will can be tacit. It can be the result of a combination of several elements. For example, the fact of staying in the property after the death of one’s spouse, of delivering a writ 3 months after the death, in which he/she wish to keep the property is expressed, and, finally, of confirming this wish in a draft deed of notoriety, does not require any additional formalism.

Good to know: when the spouse opts for the usufruct, he/she can request its conversion into an annuity. 

Children from different unions and the surviving spouse’s estate

When all the descendants are not born to both spouses (from different unions), the surviving spouse inherits one-quarter of the estate in full ownership. The children share the remaining ¾.

During his/her lifetime, a spouse can plan to benefit the surviving spouse through an inter-spousal donation or a will within the limits of the hereditary reserve.

Good to know: however, the gift between spouses can be revoked on the grounds of ingratitude. Judges have ruled that adultery is an insult that may allow the revocation of such a gift.

Surviving spouse’s estate: when there are parents

The estate of the surviving spouse is shared with the parents of the deceased.

If there are parents (ascendants) of the deceased – and no descendants – the surviving spouse shares the deceased spouse’s estate with the parents:

 – the husband leaves his 2 parents and no descendants: the surviving spouse inherits half the estate, the surviving parents each receive ¼;

 – the spouse leaves only his or her father or mother and no descendants: the surviving spouse inherits three-quarters of the estate. The surviving parent receives the remaining quarter.

The benefit of the right of return applies to the parents: they can deduct from their inheritance the goods in kind given to the deceased spouse during the marriage.

Good to know: the spouse can, during his/her lifetime, disinherit his/her parents in favour of the surviving spouse; the latter – in the absence of descendants – is the heir with right of reservation. 

Where to go for professionals legal advice?

Felix A Vitiello has been practising law since 1975 and specialises in a wide range of legal areas, including business law, criminal law, estate planning, and family law in Springvale.

Read more:

Surviving Spouse: Know Your Rights

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