In regards to his or her quality, the surviving spouse possesses different rights in successions.
1) Rights of the spouse in the presence of descendants:
When all the children belong to the couple, the surviving spouse can choose to either inherit the totality of the succession’s assets in usufruct or either receive a quarter of the assets in full ownership (article 757 of the French civil code).
This choice will necessarily have an impact on the children’s share that will receive the entirety of the succession in bare ownership or ¾ of the succession in full ownership. It is for this reason that each heir can require from the spouse to exercise this option by registered letter with acknowledgment of receipt (article 1341 of the French civil code). If the option is not exercised within three months following this notice, the spouse is presumed to have chosen the usufruct option (article 758-4 of the French civil code).
When all the children of the deceased do not belong to both spouses, the surviving spouse has a right to ¼ of the succession in full ownership.
In the event where the inheriting spouse chooses the usufruct on the totality of assets, the latter will only enjoy assets owned by the deceased on the day of his or her death (article 757 of the French civil code). The bequested assets by the deceased are not part of this usufruct.
The surviving spouse will have a right to use and to enjoy the assets on which he or she will be allowed to perceive income. This right is however limited as the spouse cannot transfer these assets.
He or she will have to ensure to preserve the substance of the assets (article 578 of the French civil code).
The enjoyment of the usufruct’s assets will end with the death of the surviving spouse or its conversion in life annuity (“rente viagère”) or in capital.
It is indeed possible for the surviving spouse or the children that possess the bare ownership to ask for the conversion of the usufruct in life annuity (article 759 of the French civil code). This option is of public order. A conversion in capital of the usufruct is also possible with the consent of the surviving spouse and inheriting children (article 761 of the French civil code).
If the inheriting spouse chooses the quarter in full ownership of the assets, the succession mass will include the assets existing on the day of the death of the spouse and the value of the assets subject to the succession on the day of the death.
2) Rights of the surviving spouse in the absence of descendants:
In the presence of the father or mother of the deceased, the surviving spouse can receive half of the succession in full ownership and each parent one quarter (article 757-1 paragraph 1 of the French civil code). If only one parent is alive at the time of the death, the spouse will then receive ¾ of the succession in full ownership and the parent will receive ¼.
In the absence of parents of the deceased, the surviving spouse will receive the entirety of the succession in full ownership (article 757-2 of the French civil code).
3) Right to the residence of the surviving spouse:
The surviving spouse possesses a temporary right to the residence of his spouse following the latter’s death.
During one year starting from the death, the spouse benefits from the free enjoyment of the home as main residence of the deceased spouse and its furnishing.
This right is extended with the possibility for the spouse to exercise a life interest (“droit viager”) on the residence. The surviving spouse that effectively occupied an accommodation as his main residence belonging to the spouses or totally dependent of the succession, possesses until his death a right to residence and use of the furnishing of this accommodation (article 764 of the French civil code).
The surviving spouse has one year starting from the death to formulate his demand (article 765-1 of the French civil code). However, he or she can be deprived from the exercise of this right if the deceased has foreseen it in his will by public instrument (“testament authentique”) (article 764 of the French civil code).
4) Right to pension:
According to article 767 of the French civil code, the inheriting spouse in need has a right to pension in the succession of his spouse.
This pension is paid from the succession assets. The heirs incur it, if not, it is imputed on legatees in proportion to the share they have received.
Maître Frédéric Michel – Fairfield Law firm | Lawyer in Cannes