LWhen a spouse dies, his widow, who only partly owns the family home, may fear being kicked out if the co-heirs want to sell. To enable him to remain there, until his own death, the law of December 3, 2001relating to the rights of the surviving spouse, instituted a “lifetime right to housing”. This right, which is deducted from her share of the estate, is not automatic: the widow must “to manifest the will” to benefit from it, within one year after the death.
Alas, the law (transposed toarticle 765-1 of the civil code) does not say how it should do so, which is a source of dispute, as the following case reminds us.
In 2012, two years after the death of her husband, Christiane X, his second wife, was assigned by her son-in-law. He asks that she be ordered to leave the family home, which she owns half, but which he wants to sell, in order to recover cash. He affirms that she did not, within the legal period, express her wish to benefit from her life right.
Staying in “equivocal” places
Mme X replies that by staying in this house, she made a request “tacit” to benefit from this right. A court of appeal gives him reason, but the son appeals in cassation. His lawyer, Mr.e Jean de Salve de Bruneton, maintains that “the only maintenance in the places does not characterize the manifestation of will”, because he is “equivocal”. It can indeed mean that the widow has opted for the “temporary right to housing”also created by the law of 2001, but should only confer free use of the premises for one year.
Jurisprudence does not then make it possible to find one’s way there; the February 13, 2019 (18-10.171), the Court of Cassation censured a court which had not allowed a widow, Mme Z, to stay in his apartment. She pointed out that, on the one hand, Mme Z had expressed the will in the summons that she had addressed to her son-in-law, in order to obtain the judicial division of the estate, and that, on the other hand, she had remained in the premises. However, it did not specify whether, taken separately, each of these elements made it possible to recognize the manifestation of the will to benefit from the life right.
Some commentators have suggested that only their stacking allows it. This is the thesis supported by M.e by Salve de Bruneton. With success: March 2 (2022, 20-16.674), the court ruled that the manifestation of will “cannot result from the sole maintenance in the premises”. Which excludes, unfortunately for Mme X, that she can stay in her house. Spouses who wish to enjoy their domicile until their death have an interest in writing it down in black and white, to the heirs or to the notary. In a letter that they will send by registered mail, with acknowledgment of receipt.