Gifts between spouses and marital property

Gifts between spouses, or gifts to the survivor, are a means of enhancing the rights of one's spouse in the succession. A gift between spouses is an excellent way to protect one's spouse. Ask your notaire for further information.

What does a gift between spouses consist of?

Such gifts may be envisaged regardless of the couple's matrimonial property regime, even if the couple own their property separately, and may be advantageous, even if there are no children.

Gifts of this type make it possible to increase one's spouse's share of the inheritance . The gift can only involve assets that form part of the donor's estate on the day of their death. An individual may revoke the gift that they have made to their spouse, at any time (while remaining the beneficiary of any gift that was made to them). There is one exception to this principle, namely when the gift was granted as part of a marriage contract.

In all cases, the gift must be made with the assistance of a notaire in order to be valid. A gift between spouses must therefore be recorded in a notarised instrument.

They can advise you in the light of your personal situation and, where appropriate, will draft the notarised instrument for you. If you have already made a gift between spouses, and that gift was made prior to 1 July 2002, do not hesitate to ask your notaire to look over it in order to check that it is compatible with the significant legal changes that have been made since that date.

What is the maximum that one may gift to one's spouse?

A distinction must be made between two different scenarios.

  1. When the couple have children, the surviving spouse usually receives either all of the deceased 's assets under a usufruct , or one quarter of the assets with full title.

    A gift between spouses offers more possibilities. If a gift is made to the survivor, they may also receive on the death of their spouse:

    -  either a usufruct over all the assets;
    -  or one quarter of the assets with full title and three quarters under a usufruct;
    -  or all of the assets that are not reserved by law for the children (i.e. the "available portion"), with full title.

  2. When one of the spouses has children from a previous marriage , their spouse can only claim one quarter of the estate with full title. In this case, a gift between spouses is particularly advantageous as it enables the survivor either to have extended property rights, or to have the benefit of a usufruct over the whole of the death estate, or to hold some property with full title and other property under a usufruct.
  3. The gift between spouses can even offer a larger choice up to the entire estate in full ownership . This vocation can be modulated freely by the surviving spouse ( cantonment faculty). So of two things one: either the children agree, or the children do not agree. In the latter case 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 pirs he will have to compensate the children. Here the donation between husband allows to take better while respecting the reserve of children.

In all cases, when the instrument is drafted, the donor may allow their spouse to choose the option that they prefer at the appropriate time, or on the contrary, to limit their possibilities.

Can a gift between spouses be advantageous for couples without children?

Yes, gifts of this type are advantageous even when there are no children : it may allow the surviving spouse to be granted the entire estate.

Frequently asked questions