Donation between spouses (or donation to the last survivor)

What does the donation between spouses involve?

This can be considered regardless of the matrimonial regime of the spouses, including, in the event of separation of property and presents an interest, even in the absence of a child.

It allows spouses to increase the spouse's share of inheritance. It can only relate to the property present in the donor's heritage on the day of his death. A spouse can at any time dismiss the donation for the last survivor, that the latter granted his spouse (while possibly remaining the beneficiary of the donation that has been granted to him). An exception to this rule: when the donation was granted through a prenuptial agreement.

In all cases, it is important to go to a notary as the donation between spouses must be established by notarial act, in order to be valid.

If you have already established a donation between spouses, but it took place before July 1, 2002, do not hesitate submitting the latter to your notary, to make sure that it is in keeping with the important legislative changes that have taken place till date.

What is the maximum amount one can give to a spouse?

There are two situations:

1. In the presence of the couple’s children, the surviving spouse usually receives either all of the deceased's property in usufruct or a quarter as full ownership. The donation between spouses leads to a more important choice. On the death, he can collect:

• either the usufruct of the entire property.
• or a quarter in full ownership and three quarters in usufruct.
• or full ownership of the available portion of the inheritance (i.e. the portion which is not reserved by right to children).

2. When one of the spouses has children from a past union, the spouse can only claim a quarter of the estate as full ownership. The gift between spouses is mainly interesting because it shall allow him/her to either collect more extensive property rights, or exercise usufruct over the entire estate, or even combine property and usufruct.

Donation between spouses can even lead to a more important choice, leading to the entire inheritance in full ownership. The purpose can be freely adjusted by the surviving spouse (cantonment option). So, it is one of the two things: either the children agree, or the children do not agree. In the case of the latter, we will compare the mathematical value of what the spouse took with the mathematical value of what he was entitled to; if he has too much, he will have to compensate the children. The donation between spouses here allows to take better, while respecting the children’s share. In all cases, while drafting an act, the donor can leave the choice to his spouse to opt, when the day comes, for the arrangement he might prefer or, on the contrary restrict the possibilities.

Does donation between spouses represent an advantage for couples without children?

Yes, it is of interest: it can allow the surviving spouse to get the entire inheritance.