Rights of the Surviving Spouse vs. Children’s Inheritance reserve

Balancing the rights of the surviving spouse with the children’s inheritance reserve is a central  issue in inheritance law. The Civil Code secures a minimum share for children while granting spouses specific rights through interspousal gifts. Tensions arise when the spouse’s share seems to diminish the children’s rights.

Case study: A man, married several times, dies without a will, leaving a widow under community property and several children from different marriages. The widow, benefiting from an interspousal gift, opts for one-quarter of the estate in full ownership and three-quarters in usufruct. Some children object, arguing that this exceeds the available share and infringes on their legal reserve.

Article 735 of the Civil Code provides for equal inheritance rights for all children, while Article 913 sets the reserve: half for one child, two-thirds for two, three-quarters for three or more. According to Article 757, the surviving spouse receives one-quarter in full ownership (or total usufruct if the children are common).

Article 1094-1 allows for a more advantageous donation between spouses, of one-quarter in full ownership and three-quarters in usufruct, within the limits of the reserved portion.

To protect the children, Article 758-6 requires that the donation be deducted from the spouse’s rights. The Court of Cassation (1st civil chamber, January 17, 2024) confirms this principle, ensuring a balance between competing interests.

Although a donation between spouses is revocable during their lifetime (Article 1096), it becomes irrevocable after death, and the children can only take action to reduce it if the reserved portion is exceeded.

This case highlights the need to reconcile the protection of the surviving spouse with respect for the reserved portion of the estate, a fundamental pillar of French inheritance law.