Succession and couples: the surviving partner’s rights over the home?

Housing and the death of a married spouse

Upon the death of one spouse, the surviving spouse benefits from several rights intended to guarantee their ability to remain in the couple’s home.

The temporary right to housing

For one year, the surviving spouse benefits from the free use of the home that they occupied as their principal residence on the day of the death, as well as the furniture within it (Civil Code, art. 763).
The deceased cannot deprive their spouse of this temporary right, which is a matter of public policy.  

Several scenarios may arise: 

• If the home belonged to both spouses or entirely to the deceased: the surviving spouse benefits from one year of free use of the property, as well as the furniture included in the estate (Civil Code, art. 763 para. 1).
• If the home was rented: the estate will cover the rent for one year, as the payments become due (Civil Code, art. 763 para. 2).
• If the surviving spouse occupies a home in which the deceased owned an undivided share: the occupation indemnity will be reimbursed to the surviving spouse by the estate for one year, as the payments become due (Civil Code, art. 763 para. 2).

Lifetime right to housing (right of use and habitation for the duration of their life)

Unless the deceased expressed a contrary intention in a notarized will, the surviving spouse who, at the time of death, was occupying the home as their main residence has a right of habitation in the property, provided it belonged to both spouses or entirely to the deceased as well as a right of use over the furniture within it, for the remainder of their life (Civil Code, art. 764).

To benefit from this right:

• They must assert their claim within one year of the death. It is important to consult a notary promptly to preserve their rights.
• An inventory of the furniture and a condition report of the property may then be drawn up to avoid future disputes.

Exceptionally, if the home is no longer suited to their needs, the surviving spouse may rent it out for a purpose other than commercial or agricultural use, to obtain the resources necessary to secure another housing arrangement (for example, a retirement home).

If the surviving spouse holds only ownership rights in the estate:

• This right of use and habitation is deducted from their share of the estate (Civil Code, art. 765).
• If the value of this right is lower than their share of the estate, they are entitled to a supplement.
• If the value exceeds their share, the surviving spouse retains the full benefit of the right and owes nothing to the other heirs.
• By mutual agreement, the surviving spouse and the other heirs may convert this right into a life annuity or a lump sum.

Preferential allocation of the home

When the estate is divided, the spouse who co-owns the home may request that ownership be preferentially allocated to them. This allocation is a matter of right and takes precedence over any similar requests made by other heirs.

To obtain this, the spouse must be a co-owner of the home, either because the property was purchased jointly by the spouses or because they inherit a share of it.

A balancing payment (sum of money) may be owed to the other heirs. Payment deadlines may be granted for part of this amount (Civil Code, art. 832-4).

Status of the lease

If the lease was in the name of both spouses, it continues for the benefit of the surviving spouse. 
If the lease was originally in the name of the deceased spouse:

• Either the spouses had jointly requested co-tenancy of the lease, in which case the surviving spouse holds an exclusive right to the lease (Civil Code, art. 1751);
• Or, in the absence of co-tenancy, the surviving spouse benefits from the transfer of the lease (Law of 6 July 1989, art. 14, and Law of 1 September 1948, art. 5)

Housing and the death of a civil union (PACS) partner

“A form of protection exists for partners in a civil union (PACS). However, it is less extensive than that provided for married couples.

Temporary right of use of the home

Like a married spouse, the surviving partner may benefit for one year after the death from the free use of the couple’s common home, as well as the furniture within it. However, unlike a surviving spouse, the surviving partner may be deprived of this right by the deceased in a will (Civil Code, art. 515-6).

• If the home belonged to both partners or entirely to the deceased: the surviving partner benefits from one year of free use of the property, as well as the furniture included in the estate.
• If the home was rented: the estate will cover the rent for one year, as the payments become due.

If the surviving partner occupies a home in which the deceased owned an undivided share: the occupation indemnity will be reimbursed to them by the estate for one year.

Good to note: unlike the surviving spouse, the surviving partner does not benefit from a statutory lifetime right.

Preferential allocation of the home

The surviving partner may request the preferential allocation of the home and the furniture within it when they are in joint ownership with the deceased’s heirs (Civil Code, art. 515-6, para. 2).

This allocation is a matter of right if the deceased provided for it in a will. Otherwise, if several heirs seek the allocation, the judge will decide.

Status of the lease

If the lease was in the name of both partners, it continues for the benefit of the surviving partner.

If the lease was originally in the name of the deceased partner:

• The partners had jointly requested co-tenancy of the lease, in which case the surviving partner holds an exclusive right to the lease (Civil Code, art. 1751).
• Or, in the absence of co-tenancy, the surviving partner benefits from the transfer of the lease (Law of 6 July 1989, art. 14, and Law of 1 September 1948, art. 5

Good to note: The surviving partner is not a legal heir. Therefore, without a will, the surviving partner inherits nothing, even if the couple had lived together for many years.

To ensure that a particular asset (such as the shared home) is passed on to them, it is strongly recommended to make a will in their favor.
However, a partner in a civil union benefits from a significant tax advantage, as they are exempt from inheritance tax, unlike partners who are not in a PACS.

Housing and the death of a cohabiting partner

Cohabitation is a de facto union; it creates no obligations and very few rights between partners. Cohabiting partners must think about protecting themselves (through a will), because the law grants no rights to the surviving partner. As for housing, several situations may arise: 

• If the surviving partner was living in an accommodation owned by the deceased partner: the law grants them no right to remain in the home.
• If both partners owned the property jointly: the survivor is no better protected. On the death of one partner, the heirs who become the new co-owners may request the sale of the property. If they can, the surviving partner may offer to buy their shares. They do not benefit from any preferential allocation.
• If the couple were tenants of the property:
  • If both partners were co-tenants on the lease: upon the death of one partner, the lease continues in the name of the surviving partner.
  • If they were not co-tenants: the surviving partner may request a transfer of the lease if they had been living with the leaseholder for at least one year at the date of death and if the cohabitation was publicly known (Law of 6 July 1989, art. 14).

Key point: the importance of planning ahead for the transfer of the home

At the time of death, the fate of the home is one of the key issues to address during the estate settlement.
Depending on the situation, the property may be allocated to an heir, or the surviving spouse may retain usufruct. This situation is often governed by inheritance rules that vary according to the provisions of the will and the choices made by the deceased prior to their death.

It is therefore essential to understand the rules governing the transfer of the home, especially if specific clauses have been included in donation agreements. For example, in some cases, the home may be included in a gift with a reserved usufruct, allowing an heir to enjoy the property while preserving ownership rights for other family members.

Moreover, a family agreement makes it possible to modify traditional inheritance rules in order to protect the interests of the heirs while respecting the reserved portion. It is also helpful to be informed about the steps to take following a death, particularly with regard to settling the estate. Finally, in some cases, a manual gift may create complications and make managing the inheritance more difficult, which makes careful planning prior to succession all the more important.