Under French law, a surviving married spouse has the right to remain in the marital home until their death, but in the presence of children has a period of 1 year from the death of their spouse to express their wish to do so. The right is called the droit de viager au logement familial.
However, the law does not specify how that wish may be expressed and although in earlier legal rulings the exercise of this right can, in certain circumstances, be tacit, bizarrely it does not automatically arise from remaining in the property.
In a recent case heard in the French Supreme Court, the Cour de Cassation, a deceased husband left his wife and a child by a former marriage.
During the inheritance process that subsequently took place, a dispute arose between his surviving spouse as a result of which the son demanded that his stepmother vacate the home.
Although the dispute is not fully recounted in the hearing, the son, who appears to have been estranged from his stepmother, claimed she did not inform him of his father's death, and court papers also testify to the fact that she was also reluctant to participate in the formalities of the inheritance process.
According to the son, his stepmother had not made it clear to him that she wished to remain in the dwelling within the prescribed period and therefore had to vacate it.
His stepmother considered that by simply continuing to live in the property she had tacitly expressed her choice.
The court rule that merely staying in the property was not sufficient and ruled in favour of the son, stating: "The mere maintenance in the premises does not characterise the manifestation of the will of the surviving spouse to benefit from the right of use and life dwelling in the property belonging to the spouses........."
John Kitching, a legal specialist in French inheritance law, comments that: "The judgement seems quite harsh on the surviving spouse, that despite continuing to live in and maintain the matrimonial home, this was not sufficient evidence of the desire to exercise the life interest option which should have been done within a year of death. It does however highlight the need for a Will or proper estate planning in order to make the deceased's wishes clear and protect the surviving spouse."
You can read more about inheritance planning options in our Guide to French Inheritance Law and Taxes .
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