Donation au dernier vivant: how French spousal inheritance protection works in 2026

For non-French residents and UK-based advisers with clients holding assets in France, the donation au dernier vivant — literally, the "gift to the last living spouse" — is one of the most commonly misunderstood instruments of French succession law. It is not a transfer of wealth. It does not produce any immediate tax effect. What it does is widen the choices available to a surviving spouse at the moment of death, so that the survivor can adapt to the real family and financial situation rather than being locked into a statutory outcome decided years earlier.

This article explains what it actually does, how the three options work in practice, the tax framework that applies, and when the deed needs to be reviewed — particularly for business owners with mixed personal and professional assets in France.

The core concept in one paragraph

Under Article 1094-1 of the French Civil Code, a married couple can grant each other a don au dernier vivant — a notarial deed that extends the surviving spouse's share beyond the statutory default. It becomes effective only at death, costs relatively little to put in place, and can be revoked unilaterally at any time without the other spouse's knowledge (Article 1094-3 Civil Code). It is exclusive to married spouses: PACS partners and cohabitants cannot use this mechanism.

Under French law, the réserve héréditaire — the forced heirship share — protects children and cannot be reduced by any gift or will. When a couple has two children together, each child is entitled to at least one quarter of the estate. The spouse can only freely dispose of the remaining quarter (the quotité disponible ordinaire).

Without a donation au dernier vivant, the surviving spouse's options are limited by statute to either: full usufruct over the estate (right of use and enjoyment without ownership), or one quarter in full ownership. In large or complex estates — particularly where significant real property or business assets are involved — neither option may fit the survivor's actual needs at the time of death.

Once a DDV is in place, Article 1094-1 gives the surviving spouse a right to choose from three arrangements at the moment of death:

The right to choose is exercised after the death — not at the time of signing the deed. This is a significant structural advantage: the survivor can assess the real tax, family, and cash-flow situation before making an irrevocable election.

Since the 2007 TEPA law, the surviving spouse is fully exempt from French inheritance tax, regardless of the value of the estate and regardless of which option is chosen. There is no cap, no threshold, and no clawback. This exemption is permanent under current law (Article 796-0 bis CGI).

The 80,724 € allowance provided under Article 777 CGI applies to other heirs — typically children — not to the surviving spouse.

Worked example. Estate value: 800,000 €. Two children in common. Surviving spouse aged 62.

If the spouse elects full usufruit:

• Usufruct value at age 62 = 40% of estate value (Article 669 CGI age scale) = 320,000 €. Tax on spouse: zero.
• Bare ownership per child: 240,000 €. After 100,000 € allowance per child, taxable base: 140,000 € each. Inheritance tax: approximately 20,000 to 30,000 € per child (rates to verify against Article 777 CGI progressive scale).

If the spouse elects quotité disponible in full ownership (2 children = 1/3 of 800,000 € = approx. 267,000 €):

• Spouse: 267,000 € in full ownership. Tax: zero.
• Each child: approx. 267,000 € in full ownership. After 100,000 € allowance, taxable base approx. 167,000 €. Inheritance tax to verify.

The usufruit option preserves the survivor's income and lifestyle but creates a deferred tax charge for the children at the second death. The full-ownership option closes the tax file sooner for the children but gives the survivor less direct wealth.

The matrimonial régime and the DDV are two separate legal layers that operate in sequence. The régime determines which assets belong to each spouse. Only the deceased's own share passes through the succession — the surviving spouse already owns their matrimonial share by operation of law, without any inheritance tax consequence.

Under the default community of acquisitions (communauté légale réduite aux acquêts), the surviving spouse receives half of all jointly acquired assets outside the succession entirely. The DDV then operates only on the remaining half plus the deceased's personal assets. This means the effective impact of the DDV is smaller in monetary terms under a community régime than under separation of property.

Under a séparation de biens régime, the DDV operates on the full value of the deceased's estate, which can represent a much larger amount.

Some couples use a communauté universelle with full attribution clause to achieve maximum spousal protection — but this approach removes any option for the children at the first death and may create significant tax inefficiency at the second.

For business owners, the interaction between the DDV and company shareholdings requires particular attention. A surviving spouse who elects full usufruit over an estate that includes company shares becomes the usufruitier of those shares. Under French company law, the usufruitier typically receives dividends but cannot exercise voting rights at general meetings — those rights generally remain with the bare owners (the children).

This can create a governance impasse if relations between the surviving spouse and the children are difficult, or if the children disagree about the direction of the business. We see this configuration generate real operational friction in family business successions, particularly where the company was owner-managed and no succession plan had been put in place.

For business owners, the DDV should be coordinated with: a Dutreil pact (pacte Dutreil) if applicable, a shareholder agreement with buy-out provisions, and a reviewed valuation of the company shares to ensure the estate calculation is reliable.

The DDV is not a one-time formality. It requires review whenever the family or financial situation materially changes:

• birth or adoption of a child (affects the reserved share calculation);
• remarriage or entry into a PACS after bereavement;
• blended family situations with children from different relationships;
• acquisition or sale of significant property;
• creation, restructuring, or disposal of a business;
• significant change in asset values (company growth, property appreciation);
• retirement and change in income needs;
• change of matrimonial régime.

A deed appropriate at 40 may be structurally unsuited at 60. The quotité disponible is a mathematical calculation — if the estate has grown significantly since the deed was signed, its practical effect has changed even though the document has not.

One aspect that surprises UK-based advisers is that under Article 1094-3 of the French Civil Code, a DDV can be revoked unilaterally and secretly at any time. Neither the other spouse nor any third party needs to be informed. This means that a couple may believe their mutual DDV is in place while one has in fact quietly revoked it.

In practice, this is rarely done maliciously, but it is a real risk in situations of deteriorating marital relations before a formal divorce. Advisers should confirm the status of any DDV as part of estate due diligence.

For UK residents or British nationals who own property or hold business interests in France, the DDV is often relevant under EU Succession Regulation 650/2012. Where a person has their habitual residence in France at the time of death, French law generally governs the succession over French assets (with the possibility of a choice-of-law declaration for nationals of another EU member state).

UK nationals are no longer EU nationals post-Brexit. This affects the availability of the choice-of-law mechanism under Regulation 650/2012 for new deaths. The interaction between French succession law, the DDV, and any UK will requires specific cross-border advice from both a French notary and a UK solicitor with international estate experience.

• Has the DDV been executed before a French notary and registered?
• Has it been reviewed within the last five years, or after any significant life event?
• Is the matrimonial régime consistent with the current family structure?
• Are there children from previous relationships whose reserved share may affect the quotité disponible?
• Does the estate include French company shares, and if so, has the usufruit/bare ownership split been discussed with the company's legal advisers?
• Has a Dutreil pact been put in place to protect the business succession?
• Has the notary seen an up-to-date valuation of all business assets?

Updated 2026-05-25. This article provides general information on French succession law for informational purposes. It does not constitute legal or tax advice for any specific situation. All succession decisions involving French assets should be made in consultation with a qualified French notary and, where cross-border issues arise, appropriate legal advisers in each jurisdiction.