HAS As Valentine’s Day approaches, the following case reminds us that a donation made during the time of love can be revoked when it disappears. In October 2007, five months after getting married, Mr.me Y, a donation to the last living person. But, keeping a cool head, he attached it with a suspensive clause, called “non-divorce”.
This clause stipulates that the donation will be “revoked by operation of law”in case of simple “introduction of divorce proceedings” (implied, by one or the other), and not of pronouncement of divorce, as provided by the law (article 265 of the civil code). But when is a procedure initiated? This is the question posed by the following case.
On January 4, 2017, Mr. He informed his two children, from a first union, to whom he asked, in a somewhat confused farewell letter, that they “leave to Mme Y the assets that she will be able to obtain from the sale of the house and the few pieces of furniture it contains…” On January 16, 2017, he ended his life.
The lawyer for the two children, Me Céline Soulié, affirms that the donation is automatically revoked, since the divorce petition 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 passage at the hearing of the cases)”she specifies.
Farewell letter
The widow, on the contrary, maintains that in 2017 the introduction of the procedure involved the“assignment” of the wife. However, the magistrates reply, this would be the” instance “ of divorce. The Toulouse Court of Appeal notes that the November 7, 2023that the disputed clause “did not require the completion of such a formality”. Unlike Mme Y, she further considers that the deceased’s letter does not demonstrate his desire to maintain the terms of the donation, since it does not relate to the same subject.
The donation of the “special available quota” (article 1094.1 of the civil code) increased the wife’s inheritance rights, compared to her legal rights. In the presence of three children (two from the first marriage and the one common to the couple), it gave him the possibility of choosing between three options: either the ordinary available portion, or a quarter of the estate in full ownership and three-quarters in usufruct, or the entirety in usufruct.
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