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Inheritance between spouses: rights of the surviving spouse

Since 2001, the surviving spouse is treated as a genuine heir except, of course, if there has been a divorce or legal separation. But this does not mean that the surviving spouse shall always inherit everything. At times he shall inherit alone, sometimes he shall be in competition with the children of the deceased or members of his in-laws. Some people known as reserved heirs (children and parents) will limit the latter’s rights.


The rights of the surviving spouse and the inheritance

If the deceased person (or the departed) leaves children born of his union with his surviving spouse

the latter gets either the usufruct of all the deceased’s entire property (which means the right to '' use the assets or receive the income), namely ownership of the quarter, depending on his/her choice. If the person doesn’t choose the option in writing within three months of the heir 's request, the surviving spouse will be deemed to have opted for the usufruct.

The solution is the same if the survivor himself dies before he has had time to choose. The differences between usufruct and full ownership are important, but once again there is no right or wrong solutions. Each case is specific. Therefore, you will need to ask your notary to analyze the situation before making any final decision whatsoever. The usufruct belonging to the spouse can be converted into a life annuity, if he wishes or if an heir may so request.. In the event of a disagreement, the judge may be referred, as long as the definitive partition hasn’t been carried out. However, the surviving’s spouse’s agreement shall be required to convert the usufruct relating to his main residence but also the furniture in the accommodation.

The usufruct can also be converted into capital, but always through mutual agreement between the surviving spouse and heirs.

If the deceased leaves other children except the one of the couple behind

The surviving spouse has no choice and takes ownership of a quarter of the deceased's property .

If the deceased does not leave children and still has his father and mother

The surviving spouse receives half of his property, and in-laws the other half as one quarter for each.

If the deceased leaves only his father or mother behind

The surviving spouse then receives three-quarters of the property, and his or her stepfather or stepmother the remaining quarter.

If the deceased has no child, grandchild, father or mother

The surviving spouse inherits everything, however with the exception of the property that the deceased had received through donation or inheritance from his ascendants (parents or grandparents) and which is still part of the inheritance. The surviving spouse inherits everything, with the exception, however, of the property that the deceased had received through donation or inheritance from his ascendants (parents or grandparents) and which is still part of the inheritance.

If the surviving spouse is the tenant of this accommodation

the rents are payable through inheritance, i.e. the other heirs. Consult the law dated 3rd December 2001 concerning the rights of the surviving spouse.

It should be noted: the rules set out above are only valid in the absence of a will, which is made by the deceased person. If a will has been drawn up, you need to consult a notary to find out the share of proceeds for the surviving spouse. The spouse cannot be totally deprived because, in the absence of descendants, he is himself the forced heir for 1/4 of the succession.


Rights of the surviving partner on housing

Temporary right to housing (for a year)

In any case, the surviving spouse is entitled to the free use of the accommodation occupied as the main residence and the furniture within the accommodation for one year right after the death. If the surviving spouse is a tenant of this accommodation, the rents are payable through inheritance , i.e. the heirs.

Life interest right to housing (permanent right of residence)

Moreover, unless the deceased wishes otherwise expressed through a notarial will , the surviving spouse has, until his death, a right of residence in the accommodation occupied as the main residence depending on the inheritance but also a right of use on the furniture.

To benefit from this, the person needs to come forward during the year of the death. It is important to consult your notary quickly in order to preserve your rights. An inventory of the furniture and status of the building, can then be drawn up to avoid potential disputes.

In exceptional cases, if the accommodation is no longer suited to their needs, the surviving spouse can rent it for use other than commercial or agricultural purposes, in order to provide the resources required for another accommodation solution (retirement home for example). This right of use and residence is deducted from the inheritance share, which is collected through full ownership by the surviving spouse. If the value of this right is lower than the share of the inheritance, he is entitled to a supplement. Otherwise, the surviving spouse retains all the benefits and owes nothing to the other heirs. Through mutual agreement, the surviving spouse and the other heirs can convert this right into a life annuity or into a capital.

Moreover, the law gives preference to the surviving spouse for the relinquishment of housing and furniture within the latter, when the estate is divided. Payment periods may be granted to him if, during the partition, he owes a sum of money (balance) to the other heirs.

Last but not least, the surviving spouse can claim a pension from the heirs, theoretically during the year of death, if need be.

Frequently asked questions