Without children, if you don’t make any arrangements, your spouse will have to share your inheritance with… your parents. Pacsé, your partner will not inherit anything in the absence of a will. If you have not anticipated your succession, the Civil Code will choose your heirs for you, and they are not always those you imagine. “It is important to anticipate, to avoid disappointments, limit conflicts and reduce inheritance taxes”, recommends Me Barbara Thomas-David, notary in Paris.
Protect your spouse
If you only have common children, the Civil Code gives your spouse, at your choice, the usufruct of all your property or full ownership of a quarter of them. The children will share the rest. The choice is delicate and depends on each individual’s situation. Keeping full ownership of part of the property makes it possible to sell them without having to ask the children’s permission, and without sharing the proceeds of the sale with them. The surviving spouse can thus sell the main residence if he wishes to move, or another asset in order to improve his lifestyle.
To know. Opting for usufruct, on the other hand, makes it possible to use the goods for personal use, to receive any income from them (interest, rents, etc.), and also to dispose of the cash included in the transferred assets.
Favor more his spouse
To allow your spouse to have it both ways, you can plan, with the help of your notary, a donation between spouses. “Thus, the surviving spouse has two additional options: he can take three quarters of the estate in usufruct and a quarter in full ownership, or even all of the portion available in full ownership, that is to say the half of the estate if there is a child, or a third if there are two, “explains Me Nathalie Couzigou-Suhas, notary in Paris.
To note. However, spoiling the spouse too much can be penalizing for the children, if on the first death of one of their parents they do not receive enough to fully use the exemption of 100,000 € on inheritance tax to which they are entitled. This tax saving will then be permanently lost.
Blended family, beware
Thinking about sharing is even more important if one of the two spouses has children from a first bed. On his death, the Civil Code grants the survivor a quarter of his property in full ownership. But once passed into his patrimony, these goods will never return to the children of the deceased spouse, since they do not inherit from their step-parent. They will therefore be transmitted to the children of the surviving spouse and, if he does not have any, to his brothers and sisters, to his nephews …
To know. “To avoid this, you can allot to your spouse by will a residual bequest, relating to one or more immovable property. He will receive them in full ownership, but upon his death, this property will revert to your own children, and not to his” , specifies Me Jean-François Humbert, notary.
Donation, with care
The donation between spouses increases the share of the surviving spouse. However, this solution can be penalizing for the children of the deceased parent born from a first bed, especially if the age difference between the spouses is significant. Because children are likely to wait decades before perceiving their inheritance. “If the heritage is sufficient, providing life insurance for children or making a donation in full ownership allows them not to be completely destitute,” explains Me Couzigou-Suhas.
To know. Another way of settling disputes is to provide for distribution by will, for example by leaving the family home to the children and the spouse the usufruct of his investments.
Children, what sharing?
According to the Civil Code, children receive… what the spouse does not take, and share it equally. Things get complicated if you’ve already made a donation to one of them. He is indeed presumed to have received it in advance of his inheritance. “During the succession, the notary will have to take into account what is worth today what you gave at the time (or what the money given made it possible to buy) in order to know how much this child must take in less on your inheritance to be equal among siblings “, specifies Me Barbara Thomas David. These calculations often sow discord. To avoid this, it is possible to reintegrate this isolated donation into a shared donation assigning property to all children.
To know. You can also specify in your will that you do not want the donation to be reassessed.
Inequality allowed …
Nothing prevents one of your children from benefiting. This is possible, for example, by making a donation “excluding inheritance”, that is to say which is added to its “normal” share of inheritance. A clarification to be included in the donation or by will. Thus, the child will be able to take as much as the others in the inheritance that you leave: this will be added to what he has already received. “However, avoid giving him real estate in this way without the other children being associated with this deed of gift. Because, as long as your estate has not been settled, he will be prohibited from selling it without the agreement of his brothers and sisters “, warns Me Couzigou-Suhas. Instead, prefer cash, for example.
To know. You can also leave a large part of your property to a single child upon your death, by attributing them to them by will, or by designating them universal legatee.
… within certain limits
Be careful, however, not to go too far. Because it is forbidden to disinherit one’s children : everyone is entitled to a minimum share of your property (their reserve), and you are free to allocate only the rest, as you wish, to the available portion. This is equal to half of your estate if you have a child, a third if you have two, a quarter if you have three or more. The calculation is made according to the value of your patrimony at the time of the opening of the succession.
To know. Other side of the coin: if you use all this available portion to spoil one of your children as much as possible, there is nothing left to protect your spouse.
What allowances for your children and grandchildren?
Without children, anticipate anyway
In this case, your spouse inherits all of your property… only if your parents are deceased. If they are alive, each is entitled to a quarter of your estate, and the spouse only to the rest. Unless, of course, if you have signed a donation between spouses or provided for something else in your will. With the latter, you are also free to distribute your assets as you wish, provided you do not totally disinherit your spouse who, in the absence of a child, is entitled to at least a quarter of your inheritance.
To know. Single and without children, your estate will be shared between your parents if they are alive, your brothers and sisters, possibly your nephews and nieces… But you are free to prefer to leave your property to whomever you see fit by drafting your will. It is even essential if you are in a civil partnership (or cohabiting partner), otherwise your partner will not inherit anything.
Donation between spouses, reciprocal protection
“Also called donation to the last alive, it is not really a donation because it relates only to the goods available on the death of the donor. Until then, it is revocable at any time. Most often reciprocal, it is useful for increasing the rights of your spouse over your inheritance: upon your death, he will be able to sort through the assets of the succession and keep those he wishes to retain. On the other hand, it does not allow you to attribute particular assets to the spouse. “If, for example, you want the main residence to come back to him, you must provide for it by will”, indicates Me Nathalie Couzigou-Suhas.
Give to grandchildren
Your grandchildren only inherit from you automatically if they replace their deceased parent: they then collect their share. Apart from this situation, they do not receive anything, unless you have provided for it in your will. “They only benefit, for the calculation of inheritance tax, from 1,594 € of allowance”, specifies Me Barbara Thomas David. Whereas, if you make a donation to them, they can accumulate two deductions of € 31,865 every fifteen years. However, what you give them is taken from the available quota, and therefore reduces the spouse’s share. “Not to mention that one of your children may feel at a disadvantage if he does not have a child himself”, warns Me Humbert. Intergenerational donation-sharing makes it possible to get around this obstacle. With her, you give to the various branches of your descendants, for example to the children of your daughter who agrees to leave her share of the inheritance to her children, and at the same time to your childless son, who receives her goods. -even.
Life insurance, a controlled freedom
You can designate the beneficiaries of your life insurance contract as you wish: only one child, a grandchild, a friend… He will have no account to render to the other heirs, as long as you have not made exaggerated payments in relation to your income or your patrimony. On the other hand, if you have invested disproportionate amounts for your budget at the time, the children can ask the judge to return part of this money.
The expert’s opinion
To properly prepare for your succession, you must first of all discuss the subject with your children and spouse, to explain your concerns, obtain their opinion… Parents can thus avoid disappointments and resentments. For example, parents have financed the costly studies of their eldest child, and wish to compensate by a donation to their younger child. For them, it is a fair choice. But by law, parents are required to finance the education of children, while a donation will be an advance on the estate, unless they decide to allocate it in addition to this child. However, if they make this choice without saying anything, they give the other person the impression of being at a disadvantage. Everything will be better if they explain their motivations. Often, too, the older you get, the more afraid of missing out. From where sometimes curious reactions of the surviving spouse, who takes in the succession more than what he really needs, to the detriment of the children. Here too, providing for a distribution avoids odds.
Thanks to Me Jean-François Humbert, notary in Paris
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