Donation au dernier vivant: options, tax and pitfalls to avoid in 2026

The donation au dernier vivant (gift to the last living spouse) is one of the few succession instruments that any married couple can put in place without specialist expertise — it requires nothing more than a notarial deed. Yet in the files we handle, it is frequently signed once and then forgotten, or poorly aligned with the matrimonial regime and the actual composition of the estate. Understanding precisely what it does, what it does not cover, and how the tax framework applies to the surviving spouse is essential before treating the matter as settled.

What is a donation au dernier vivant and what does it change?

The donation au dernier vivant (DDV), also called donation entre époux, is a notarial deed by which each spouse grants the other an extension of their succession rights beyond the statutory default. It does not create new assets. It widens the options available to the surviving spouse at the moment of death — particularly where common children restrict the reserved share (réserve héréditaire). Its legal basis is Article 1094-1 of the French Civil Code.

Article 1094-1 of the Civil Code allows spouses to grant each other a gift exceeding the ordinary available share (quotité disponible ordinaire): this is the quotité disponible spéciale entre époux — the special available share between spouses. This rule departs from general succession law and is reserved exclusively for married couples. It does not apply to partners in a PACS (civil partnership) or to cohabitants.

Article 1094-3 of the same code provides for unilateral revocability of the donation at any time, without the other spouse being informed. This is a significant feature: unlike an ordinary will, a DDV can be revoked without giving reasons and without any adversarial procedure.

The donation takes effect only at the death of the donor. It produces no legal effect during the donor's lifetime.

This is the core of the mechanism. Without a DDV, where there are common children, the surviving spouse is limited by statute to two options: full usufruit (right of use and enjoyment) over the entire estate, or one quarter in full ownership. With a DDV in place, Article 1094-1 opens three options to the surviving spouse, who chooses at the time of death according to their actual circumstances:

The election is made after the death — which is a major structural advantage: the surviving spouse can adapt to the real situation as it actually exists, rather than being locked into a projection made years earlier.

Without a DDV, the surviving spouse's rights are limited to the statutory default. The table below illustrates the difference on an estate of 800,000 € with two common children:

The DDV does not override the children's reserved share. It operates exclusively within the quotité disponible — the portion of the estate that can freely pass to the spouse.

This is a fundamental point that is sometimes overlooked in the legal discussion. 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. This exemption is total and permanent — it is not capped.

The 80,724 € allowance provided under Article 777 CGI therefore applies only to other heirs (children, for example) when they receive assets in full ownership from the deceased parent as part of a mixed succession.

For the surviving spouse directly:

• Assets received in full ownership: total exemption from inheritance tax.
• Assets received as usufruit: no tax on the usufruit received.
• Bare ownership (nue-propriété) received by the children: the scale in Article 669 CGI applies according to the age of the usufruitier.

Worked example. Estate composed of a principal residence worth 500,000 € and a financial portfolio worth 300,000 € — total: 800,000 €. Two common children. Surviving spouse aged 62.

If the spouse elects full usufruit:

• Usufruit value (spouse aged 62 = 40% under the Article 669 CGI age scale): 320,000 €. Tax: zero.
• Bare ownership allocated to the children: 480,000 €, i.e. 240,000 € per child. After the 100,000 € allowance per child, taxable base: 140,000 €. Inheritance tax to verify against the progressive scale (Article 777 CGI), in the order of 20,000 to 30,000 € per child.

If the spouse elects the quotité disponible in full ownership (1/3 of 800,000 € = approx. 266,000 €):

• Spouse receives 266,000 € in full ownership: zero tax.
• Each child receives approx. 267,000 € in full ownership. After the 100,000 € allowance, taxable base: 167,000 €. Inheritance tax to verify.

The full usufruit option better protects the surviving spouse's standard of living but creates a deferred tax charge for the children at the second succession (when the usufruit is extinguished). The full-ownership option gives the spouse less direct wealth but closes the tax file for the children sooner.

The DDV and the matrimonial regime are two distinct legal layers that operate in sequence within the succession. The matrimonial regime determines first what is jointly owned and what belongs to each spouse individually. The succession only concerns assets belonging to the deceased after liquidation of the regime.

Practical consequence: under the default community of acquisitions (communauté légale), half of jointly acquired assets reverts to the surviving spouse by operation of the regime liquidation — without passing through the succession at all. The DDV therefore operates only on the remaining half (together with the deceased's personal assets, or propres). The monetary effect of the DDV is accordingly narrower under a community regime.

Under a séparation de biens regime, the two estates are entirely separate. The DDV operates on the full value of the deceased's estate, which can represent a significantly larger amount.

This is why some couples choose a communauté universelle with a full attribution clause to the survivor: technically more protective than the DDV, but it removes any option for the children at the first death and may be fiscally disadvantageous for them.

The connection with property dismemberment is direct: usufruit and bare ownership arising from a DDV follow the same management and extinction rules as any other dismemberment arrangement.

A frequent scenario: a spouse aged 55, one common child and one child from a previous marriage. Estate of 600,000 € held under communauté légale.

Without DDV: the surviving spouse receives half of the community assets through liquidation (300,000 €). On the deceased's 300,000 €, the survivor can choose between 1/4 in full ownership or 100% usufruit. The child from the previous marriage is entitled to a reserved share calculated on the full estate of the deceased, which they can accept or contest.

With DDV: the surviving spouse has the same expanded options, but the presence of a child from another relationship complicates the calculation of the quotité disponible and may reduce the share available for the spouse. Article 1094-1 applies, but with the ordinary (not the special) quotité disponible, calculated taking into account all reserved heirs across all relationships.

In this type of file, the DDV alone is not sufficient. A supplementary will and a review of the matrimonial regime are often necessary to avoid conflicts between heirs.

The competent centre des finances publiques (registration service) examines several points when the succession declaration is filed:

• the value of the assets transferred and the method used to assess them (particularly company shares and real property);
• the consistency between the declared matrimonial regime and the identified assets;
• the option elected by the surviving spouse and its compatibility with the rights of the reserved heirs;
• the existence of a prior donation-partage (family share partition gift) that might reduce the taxable base.

A poorly valued professional asset, or a holding company whose shares have not been the subject of a serious valuation, is one of the most frequent sources of dispute. This is where the chartered accountant (expert-comptable) intervenes upstream of the notary to produce a defensible valuation.

The DDV should be treated as a living document. The priority moments for review are:

• birth or adoption of a child (changes the reserved share calculation);
• remarriage or entry into a PACS after bereavement;
• blended family situation;
• acquisition of a significant property asset or disposal of the estate;
• creation, development, or disposal of a business;
• move into a holding structure or capital restructuring;
• retirement (change in the expected standard of living of the surviving spouse);
• change of matrimonial regime.

A deed that is appropriate at 40 may be unsuited at 60 if the estate has grown tenfold or if the family structure has changed. Donation-partage arrangements with the children also modify the context in which the DDV operates.

The risk we most frequently observe in the files of business owners is the disconnect between the DDV and the valuation of the company. When a director holds 80% of a company valued at 2 million €, the succession is predominantly professional in nature. A surviving spouse who elects full usufruit over the estate becomes usufruitier of company shares: they are entitled to dividends but cannot manage the shares. The children, as bare owners, hold the voting rights.

This configuration can immobilise the company for years if the relationship between the surviving spouse and the children is strained. The DDV must then be coordinated with a progressive transfer of the shares, an active Dutreil pact (pacte Dutreil), or a buy-out mechanism provided for in the company's articles. A family holding structure may provide a more appropriate framework in this type of situation.

See also our article on wealth planning for business owners for guidance on positioning the DDV within a broader strategy.

• Has the matrimonial regime been reviewed recently?
• Do you have children from more than one relationship?
• Do you hold company shares or interests in a holding structure?
• Has the property estate changed significantly since the last version of the deed?
• Has a donation-partage already been completed with the children?
• Does the surviving spouse have a foreseeable need for liquidity or regular income?
• Do the company's articles provide for a buy-out or pre-emption clause in the event of succession?
• Does the notary have an up-to-date valuation of your professional assets?

The donation au dernier vivant is an instrument of flexibility, not of total protection. Its real value lies in giving the surviving spouse a right of election at the moment of death — when they finally know the actual tax, family, and financial situation. This is structurally different from a decision made in the abstract, years in advance.

But that flexibility only has meaning if the options remain coherent with the real composition of the estate. Usufruit over illiquid shares is a theoretical form of protection. A share in full ownership without the liquidity to settle soultes (equalisation payments) can freeze the succession. This is why we always approach this subject in coordination with the notary, and with an up-to-date valuation of the professional assets.

For further reading on estate management: bare ownership and usufruit applied to property.

Updated 2026-05-25. The information in this article is general in nature and concerns French succession law. It does not substitute for personalised notarial or tax advice specific to your situation, your documents, and the legislation in force. Any succession decision must be the subject of an individual consultation with a qualified notary.