Can donation entre époux protect survivor of couple from stepchildren?

My wife has children from a previous marriage; we do not have children together. We own our home in France. How should we protect the survivor in the event of one of us dying? Is a donation entre époux a good idea?

Matthew Cameron of Ashton’s Legal replies: I will assume you are both British, own your French property but not en tontine (which would ensure the survivor inherits the house absolutely), and the husband does not have children.

The donation entre époux is like a will, signed before a notaire, governing what will happen to the estate of a couple at the time of each of their deaths. It can be treated in the same way as if a married couple have prepared mirror wills. So a donation entre époux would not offer any greater options than are available through a will, as either would have the same result.

The next thing to consider is what you would expect in terms of protecting the survivor. If that would entail absolute ownership of the house and if the husband has no children and dies first, a will leaving everything to the wife would work. If the wife is first to die, she could leave everything to the husband in a will, if she elects for English law to apply.

However, as husband and wife are French residents, her children could claim against him, as they have effectively been disinherited. Or, if the husband would be satisfied with living in the property for his lifetime, the wife could allow French law to apply and grant him a life interest (usufruit).

The wife’s will would effectively leave her estate to her children, subject to the husband’s right to use the house in his lifetime. On his death, her children become owners.

This is only an overview and does not consider inheritance tax.