this unexpected condition to benefit from a donation to the last living person

Even though we celebrate Valentine’s Day today, love is not always enough. This is what reveals a case of donation to the last living person, judged last November by the Toulouse Court of Appeal.

Money subordinated to love. This is illustrated by a judgment handed down at the end of 2023 and spotted by The world. In 2007, five months after his second marriage, Mr. But with a very specific “no divorce” clause: in the event of “divorce proceedings being initiated”, and not the divorce being pronounced, the donation “will be automatically revoked”.

Ten years later, on January 4, 2017, Mr. He immediately informed his two children from his first marriage, and asked them in a farewell letter to leave to Mrs. Y, “the assets that she could obtain from the sale of the house and the few pieces of furniture it contains “. On January 16, Mr. A legal battle ensued over whether or not the donation would be revoked.

Donation: how to give money to your children or loved ones, and how much?

The increase in inheritance taxes

This donation of the “special available portion” would increase the wife’s inheritance rights, compared to her legal rights. In the presence of three children (two from the first union and one common to the couple). Mrs. Y would then have the possibility of choosing between three options: the ordinary available portion, a quarter of the estate in full ownership with three-quarters in usufruct or the entirety in usufruct.

The lawyer for the two children affirms that the donation is automatically revoked, since the petition for divorce constitutes the initiating act of the divorce procedure: “It does not matter that the registry, informed of the death of the spouse, which puts an end to all divorce proceedings, then removed it from the roll (register determining the order of attendance at the hearing of the business)”.

For her part, the widow believes that in 2017 the introduction of the procedure implied the “summoning” of the wife. However, the magistrates reply, this would be the “instance” of divorce.

The Toulouse Court of Appeal ruled on November 7, 2023 and found that the disputed clause “ did not require the completion of such a formality “. Unlike Mrs. Y, she considers that the deceased’s letter does not show his desire to maintain the terms of the donation, since it does not relate to the same subject. In 2005, the Court of Cassation rendered a similar decision specifying that the spouse has the right to make a conjugal donation conditional on the persistence of the matrimonial bond.

Following the revocation of the donation, Mrs. Y is only entitled to only a quarter of the estate, in full ownershipand the remaining three-quarters of the children.

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