Two Categories of Spousal Gift
French law treats donations between spouses as a special regime, departing from the ordinary rules in several important respects. The most fundamental distinction is between gifts of present assets (donations de biens présents) and gifts of future assets (donations de biens à venir).
A gift of present assets operates as an ordinary donation: the donor gives specific existing assets to their spouse, with immediate (or deferred to a term) transfer of ownership. The key departures from ordinary donation law relate to irrevocability — described below.
A donation de biens à venir is fundamentally different: the donor does not give specific assets. Instead, they grant their spouse the right to receive, at the donor's death, a fraction of the assets then existing in the donor's estate. The gift has no subject-matter until the donor dies. Because this is a gift of assets that do not yet belong to the donor, it would be null under the general rule prohibiting pactes sur succession future — but an exception exists exclusively for spouses. The donation au dernier vivant is the everyday name for this instrument.
Gifts of Present Assets between Spouses
The irrevocability rule since 1 January 2005
The 2004 and 2006 legislative reforms fundamentally altered the irrevocability of spousal gifts of present assets. The rule now hinges on a single question: did the gift take effect during the marriage?
| Type of gift | Irrevocable? | Consequence of divorce |
|---|---|---|
| Gift that takes effect during the marriage (since 1 Jan 2005) | Yes — irrevocable (C. civ. Art. 1096, al. 2) | Maintained in full. A condition résolutoire for divorce is void as contrary to public order (Cass. 1ère civ. 14-3-2012 n° 11-13.791). Note: if the illicit condition was the dominant motive, the entire donation may be null. |
| Gift that does not take effect during the marriage (e.g. reversion of usufruct, life insurance designation) | No — freely revocable (C. civ. Art. 1096, al. 2 a contrario) | May be revoked after divorce, unless the donor waived revocation (Cass. 1ère civ. 28-2-2006; Cass. 1ère civ. 26-10-2011). |
| Gifts made before 1 January 2005 | No — freely revocable at any time (C. civ. Art. 1096 in its previous version). The donor may still revoke even after 1 Jan 2005. | Divorce is without effect. Revocability continues post-divorce except where waived by the donor or incorporated into a divorce settlement. |
The right to revoke is strictly personal to the donor: it cannot be exercised by the donor's creditors or heirs. However, if the donor commenced the revocation action during their lifetime, their heirs may continue it (Cass. 1ère civ. 4-11-2015 n° 15-10.774).
Common forms of present-asset gifts between spouses
Direct notarial donations of present assets between spouses are relatively rare. By contrast, indirect donations are frequent: the reversion clause of usufruct in a donation with reserved usufruct made to a child; the designation of a spouse as life insurance beneficiary; and the acquisition of property in one spouse's name financed by the other under a séparation de biens regime. Establishing the intention libérale required to characterise these as donations is often difficult, particularly where the spouse argues that the transfer was rémunératoire — compensating for unpaid professional contributions, domestic work, or professional sacrifices (Cass. 1ère civ. 31-3-2010 n° 09-14.397; Cass. 1ère civ. 9-2-2022 n° 20-14.272).
Where a spouse under a séparation de biens regime finances property acquired in their spouse's name without any record of a loan obligation, or pays their spouse's debts, the tax authority may characterise the transfer as a taxable indirect donation — even during the donor's lifetime. Since the TEPA Act (2007) exempts the surviving spouse from succession duty (but not gift duty), the tax authority now assesses such transactions during the donor's lifetime rather than at death (CA Paris 29-6-2007 n° 05/17124; Cass. com. 15-3-2011 n° 10-14.886).
The Donation au Dernier Vivant
The donation au dernier vivant (also called donation de biens à venir) is an institution contractuelle: a contractual liberality, unique to French law, by which one spouse grants the other the right to receive, at the donor's death, a share of the assets then forming the estate. The instrument may be made during the engagement (in a contrat de mariage) or at any point during the marriage. It must be in notarial form. It is freely revocable by the donor at any time without the other spouse's knowledge, before or after divorce. The right to revoke is personal and lapses at the donor's death.
What the surviving spouse may receive: the quotité disponible spéciale
The donation au dernier vivant typically grants the surviving spouse the maximum that the law permits — the quotité disponible spéciale entre époux (C. civ. Art. 1094-1). This special disposable portion is wider than the ordinary disposable portion, and exists in three forms. In practice, the deed usually grants the widest available option and delegates the choice between options to the survivor at the time of the first death.
These options apply when the donor-spouse is survived by children or descendants. If there are no descendants, the donor may give the entire estate in full ownership. The surviving spouse's choice of option is not itself a reduction of the universal liberality — it is an exercise of the option delegated in the deed (Cass. 1ère civ. 13-7-2022 n° 21-10.226). Since the 2006 reform, the surviving spouse cannot cumulate the legal rights they hold as an heir with the rights under a donation au dernier vivant — the liberality is imputed against their legal vocation (C. civ. Art. 758-6).
The deceased had three children and made a donation au dernier vivant to their spouse granting the widest quotité disponible spéciale. At death, the estate is worth €900,000. The surviving spouse elects Option B (¼ PP + ¾ US): they receive €225,000 in full ownership and usufruct over the remaining €675,000. The children hold bare ownership of the €675,000 portion and receive the €675,000 free of any further duty at the surviving spouse's later death.
Alternatively, if the surviving spouse elects Option C (total usufruct), they use the entire estate during their lifetime; the children inherit the full estate at their death with no second round of succession duty (CGI Art. 1133).
Cantonnement: The Spouse's Right to Accept Less
The surviving spouse in concurrence with the descendants may cantonment their benefit: they may voluntarily limit the liberality made in their favour, accepting less than what the donor gave (C. civ. Art. 1094-1, al. 2). No particular formality is required (though a written declaration is advisable within the six-month succession declaration period to avoid additional duty for the children). The cantonment is not a liberality made by the surviving spouse to the children — it produces no rapport and no reduction obligation. The benefit that accrues to the children or the donor's other successors as a result of the cantonment is not taxable as a donation to them (CGI Art. 788 bis). They pay succession duty on what they receive, based on their degree of kinship with the deceased.
For common children, cantonnement is generally not the most efficient structure: it is fiscally better for the surviving spouse to receive all assets free of succession duty (since the TEPA exemption applies), then make gifts to the children while alive — benefiting from the €100,000 parent-child abatement and the lower tariff bands. The non-taxation of cantonnement only creates genuine value where the benefiting child is not a descendant of the surviving spouse (i.e. a child of the deceased from another relationship), because those children would otherwise face the 60% rate applicable between non-relatives.
Fiscal Treatment
Since the TEPA Act of 21 August 2007, the surviving spouse is entirely exempt from French succession duty on everything they inherit or receive through a donation au dernier vivant or a will. No ceiling, no threshold: the exemption is absolute for successions opened since 22 August 2007. This sweeping exemption means there is less pressure to minimise what the surviving spouse receives — anything they receive passes without duty. The remaining tax consideration is the duty applicable when assets subsequently pass from the surviving spouse to the children, at which point the ordinary parent-child rules apply.
Inter vivos donations between spouses remain subject to gift duty at the rates applicable between spouses, with a €80,724 abatement every 15 years.
The donation au dernier vivant is available exclusively to married spouses. Partners under a PACS may not make a donation de biens à venir to each other. They also inherit nothing by intestacy. Their mutual protection instruments are limited to wills and life insurance. Unmarried concubins are in the same position. The TEPA succession exemption applies to PACS partners but not to concubins.
Our guides cover donation au dernier vivant, spousal testamentary arrangements, and blended-family structures involving children from different relationships under French succession and family law.
Book a ConsultationThis article is provided for general informational purposes only and does not constitute legal advice. The rules described reflect French law as of March 2026. Cross-border marriages and multinational estates may be subject to the EU Succession Regulation No. 650/2012 and international tax treaties. Readers should consult a qualified French notary and lawyer before making any spousal donation or testamentary arrangement.
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Key Legal References
Quotité disponible spéciale entre époux: three options available to the surviving spouse under a donation au dernier vivant. Option A: freely disposable portion in full ownership (1/2 with 1 child; 1/3 with 2 children; 1/4 with 3+). Option B: 1/4 of estate in full ownership + 3/4 in usufruct regardless of number of children. Option C: entire estate in usufruct (children hold bare ownership). Cantonnement: surviving spouse may voluntarily limit their benefit; no particular formality required; benefit accruing to other successors is not a donation to them. Surviving spouse may not cumulate legal rights as heir with rights under donation au dernier vivant (since 2006 reform)
Irrevocability of spousal present-asset gifts (since 1 January 2005): gift that takes effect during the marriage — irrevocable. Gift that does not take effect during the marriage (reversion of usufruct, life insurance designation) — freely revocable. Gifts made before 1 January 2005 — freely revocable at any time. Right to revoke is strictly personal to the donor; cannot be exercised by creditors or heirs; if donor commenced revocation action during lifetime, heirs may continue it. A condition résolutoire for divorce is void as contrary to public order
Divorce and present-asset gifts since 2005: gifts of present assets taking effect during the marriage are maintained after divorce. Condition résolutoire for divorce void as contrary to public order (if illicit condition was dominant motive, entire donation may be null)
No cumulation of legal rights and liberality: surviving spouse cannot cumulate the legal rights they hold as an heir with the rights they hold under a donation au dernier vivant or a will; liberality is imputed against their legal vocation; if liberality is less than legal rights, survivor may claim the difference up to the limit of the quotité disponible spéciale
Cantonnement: benefit accruing to children or other successors of the donor as a result of the surviving spouse’s cantonnement is not taxable as a donation to them
No succession duty on consolidation of bare ownership at usufructuary’s death: when the usufruct ends at the surviving spouse’s death, the bare-ownership children acquire full ownership with no further duty
Marriage contract gifts: no irrévocabilité spéciale required (Art. 1086); no need for express acceptance (Art. 1087); caducité if marriage not celebrated (Art. 1088)
Surviving spouse entirely exempt from French succession duty: exemption is absolute for successions opened since 22 August 2007; no ceiling; no threshold. TEPA exemption does not apply to PACS partners’ partner or to unmarried concubins. Inter vivos donations between spouses subject to gift duty at spousal rates (€80,724 abatement every 15 years)
Where spouse under séparation de biens finances property in other spouse’s name without loan obligation, or pays other spouse’s debts, tax authority may characterise as taxable indirect donation during donor’s lifetime (not at death) since TEPA exemption applies only to succession duty not gift duty
Donation au dernier vivant (donation de biens à venir): contractual liberality unique to spouses; grants other spouse the right to receive at donor’s death a fraction of the assets then in the estate; must be in notarial form; freely revocable by donor at any time without other spouse’s knowledge; right to revoke is personal and lapses at donor’s death; may be made during engagement (in contrat de mariage) or during marriage; available exclusively to married spouses (not PACS partners or concubins)
