The prerogatives of the surviving spouse

According to the original Civil Code, succession devolution was based mainly on kinship, and only incidentally on marriage. The surviving spouse was therefore generally relegated to the background.

Today, particularly because of the growing popularity of the nuclear family, formed by the couple and their children, the legislator has been led to promote the surviving spouse in the field of inheritance.

The extension of the succession plan to a hereditary vocation is reflected first of all in the generalization of property rights, which, in some cases, even become reserved rights.

It also manifests itself in the creation of special prerogatives over his or her housing, as well as in a strengthening of his or her right to maintenance if he or she is in need, these two measures tending to preserve his or her living conditions in the event that his or her vocation to succession is not sufficient.

I. The inheritance vocation of the surviving spouse.

What are the conditions expected of its successor?

The succession devolves to the survivor only to the extent that the survivor still had the title of spouse at the time of the premature death. This is not the case for the divorced spouse.

Thus, article 732 of the Civil Code provides: "A surviving spouse is a surviving spouse who is not divorced".

Consequently, on the other hand, the spouse separated from bed and board or in the process of divorce at the time of death retains his or her status as a successor.

II. What are the rights of the surviving spouse in the estate?

According to article 757 of the Civil Code, "If the predeceased spouse leaves children or descendants, the surviving spouse shall, at his or her choice, collect the usufruct of all existing property or the ownership of one quarter of the property when all the children are the children of both spouses and the ownership of one quarter in the presence of one or more children who are not the children of both spouses".

The surviving spouse's option, between usufruct and ownership, must be exercised within three months of death, failing which he or she is deemed to have opted for usufruct (article 758-3 of the Civil Code).

It should also be noted that, in the absence of a descendant, the surviving spouse benefits from the status of a reserved heir in the estate of the premature spouse. Thus, Article 914-1 of the Civil Code provides that "Gifts, by inter-vivos deeds or by will, may not exceed three quarters of the property if, in the absence of a descendant, the deceased leaves a surviving, non-divorced spouse".

From a tax point of view, the deceased's spouse is exempt from inheritance tax.

The prerogatives of the surviving spouse over housing

In the event of the death of one of the spouses, the surviving spouse has a temporary right to enjoy the family home and its furniture for one year from the opening of the succession (Article 763 of the Civil Code). In the event that this dwelling is rented, the estate will pay the rent during the year following the death.

This right is mandatory, the spouse cannot therefore be deprived of it by will and, as a result of the marriage, it benefits the spouse as of right.

The spouse therefore does not have to make the request to anyone, heirs or otherwise, and it does not matter if the succession renounced.

It is sufficient for the successor spouse to remain in the place, as from the date of death, to benefit from it, without having to carry out any formalities.

When, at the end of its term, the spouse's annual right to enjoy the property expires, another right, also intended to provide the spouse with a living environment, may take over and even perpetuate it.

Indeed, the surviving spouse also benefits from a lifetime right of use and habitation on the dwelling and the furniture of which it is composed (article 764 of the Civil Code).

Nevertheless, although this life right can be analysed as a complement to the right of enjoyment, unlike the latter it is a right of an inheritance nature and not an effect of marriage. Therefore, only the spouse who accepts the estate can benefit from it, and he or she must apply for it. He has one year from the opening of the succession to express his will (Article 765-1 of the Civil Code), failing which he would be deemed to have tacitly renounced it.

Finally, unlike the right to annual enjoyment of housing, the lifetime right to housing under article 764 of the Civil Code is not mandatory, so that the surviving spouse may be deprived of it by the will of the deceased.

The right to maintenance

If, on the death of his spouse, the surviving spouse, not divorced, finds neither in his personal resources nor in the matrimonial regime nor in his hereditary vocation the minimum necessary for a decent life, article 767 of the Civil Code grants him a maintenance claim against the succession. This maintenance is therefore a burden on the inheritance and the claim is deducted from the estate assets.

The maintenance claim is based on the verification of the capacities of the estate, the assets making up the estate, and the lack of the surviving spouse, the latter state itself involving a balance of his needs and resources. The surviving spouse must therefore make a legal claim, which can only be made within a period of one year from the date of death.

However, this pension has only a maintenance objective, it does not tend to provide the survivor with resources beyond the satisfaction of his or her basic needs.

The right to a reversionary pension

In the event of the death of the insured person, the old-age insurance of the general social security system allows the surviving spouse and the divorced spouse (here assimilated to the surviving spouse) to benefit from a reversionary pension which represents a certain percentage of the main pension which the insured person was receiving or would have received (54% of the main pension since 1 July 2004). Therefore, cohabitants and partners in a civil solidarity pact do not benefit from this pension.

The survivor's pension is paid to the surviving spouse under certain conditions. First of all, the surviving spouse is only entitled to a survivor's pension from the age of 55 (article D. 353-3 of the Social Security Code).

A surviving spouse who does not meet this age requirement may nevertheless receive the widow's allowance, if he or she has not remarried, for a maximum period of two years (Article D. 356-5 of the Social Security Code).

Secondly, the survivor's pension is only awarded to the surviving spouse when his or her resources do not exceed an annual ceiling equal to 2,080 times the hourly amount of the minimum wage (9.76 euros in 2017), and this ceiling is multiplied by 1.6 if the surviving spouse lives in a couple. Resources, examined over the last three months, include the professional income, pensions, pensions and assets of the surviving spouse, as well as those of any new spouse, PAC partner or partner.

Since the divorced surviving spouse is treated in the same way as the non-divorced surviving spouse for the payment of the survivor's pension, in the presence of several spouses, the pension will be divided in proportion to the respective duration of each marriage, provided that each of the spouses meets the required conditions and in particular the means conditions.

Finally, it is important to note that remarriage does not deprive the divorced surviving spouse of the deceased of the right to receive the reversionary pension from the former spouse's basic pension.