The donation entre époux

The donation entre époux can be drawn up by a notaire and can protect the surviving spouse (not civil partner), notably where there are children from outside the marriage and whatever kind of marriage contract the couple has.

Also called donation au dernier vivant (gift to the survivor) it is a deed of gift that takes effect on death and allows you to leave more than the quotité disponible.

It can be of special interest where there are children from a prior marriage.

Otherwise, the basic rules apply and if the only children are common to the marriage, in the event of one spouse dying, the survivor has a choice between a usufruit over the whole estate or a quarter in outright ownership. However if the deceased had children from a previous marriage, the survivor normally can only have a quarter in full ownership.

The donation can allow you to give the survivor usufruit of the estate, or a quarter in full ownership and the rest as usufruit, or it may say the survivor will receive in full ownership the quotité disponible. If there are no children you may use it to leave everything to your spouse. You may also do this where the children agree to it (if they do not, you can still go ahead but the spouse will have to compensate them).

A donation entre époux can be revoked at any time before the maker's death unless it was part of a marriage contract.

A process called cantonnement exists whereby a surviving spouse benefiting from a donation au dernier vivant or will, or a légataire, may after a death, give up part of what they are due in favour of the heirs.