Updated:August 2026
Summary
- The surviving spouse’s inheritance rights depend first and foremost on the matrimonial property regime (community property or separation of property) and on whether a will or a gift between spouses exists.
- In the absence of specific provisions, the surviving spouse inherits a share in full ownership or, where there are children from the marriage, may choose usufruct over the entire estate.
- Lifetime housing rights and temporary occupancy rights protect the surviving spouse, including the right to remain in the home for at least one year.
- Selling a property after a death requires the estate to be settled by a notary, including the preparation of a deed of notoriety and a real estate ownership certificate. If the property is jointly owned by several heirs, their agreement is required.
- PACS partners and unmarried partners do not benefit from automatic inheritance protection. Without a will or specific contractual provisions, they may be excluded from the estate.
- The tax treatment of the sale varies depending on whether the surviving spouse holds full ownership, usufruct, or joint ownership with the children.
Losing a husband or wife is already a difficult experience. Having to deal immediately afterwards with questions about rights to the family home and whether it can be sold adds another layer of complexity at a time when emotional and practical resources may already be stretched.
Many surviving spouses wonder whether they can remain in the house, whether they actually own it and, above all, whether they can sell it themselves or need the agreement of the couple’s children or children from a previous relationship.
The answer depends on several interconnected factors: the matrimonial property regime chosen when the couple married, the existence of a will or a gift between spouses, whether there are children from the current or a previous relationship, and finally the couple’s legal status—marriage, PACS or cohabitation.
Understanding the relationship between inheritance and the surviving spouse is therefore essential before considering putting the property on the market.
This article explains the surviving spouse’s rights in different situations, statutory usufruct and lifetime housing rights, the steps that must be completed with a notary before the property can be sold, the applicable tax rules, and the specific situations of PACS partners and unmarried couples.
The Surviving Spouse’s Rights According to the Matrimonial Property Regime
The Community Property Regime
The majority of married couples in France are subject to the statutory community of acquisitions regime (communauté réduite aux acquêts) unless they have entered into a marriage contract providing otherwise.
Under this system, assets acquired during the marriage generally belong equally to both spouses, while assets owned before the marriage or received through a gift or inheritance remain the separate property of the spouse concerned.
When one spouse dies, the deceased’s half of the community property becomes part of their estate, while the other half remains the property of the surviving spouse, who already owned it during the marriage.
For example, if a house purchased during the marriage is valued at €400,000, the surviving spouse immediately retains ownership of €200,000, representing their half of the community property.
Only the remaining €200,000 becomes part of the deceased spouse’s estate and is divided between the surviving spouse and the other heirs.
The Separation of Property Regime
Under the separation of property regime, each spouse remains the sole owner of the assets they acquire, unless a property is purchased jointly in both names.
If the family home was purchased equally by both spouses, each owns 50% in their own right. When one spouse dies, only their 50% share becomes part of the estate.
However, if the home was purchased solely in the deceased spouse’s name, the entire property forms part of their estate. The surviving spouse only acquires rights to it through the applicable inheritance rules, either in full ownership or through usufruct depending on the family situation.
Where There Is a Will or a Gift Between Spouses
Regardless of the matrimonial property regime, spouses may have planned their inheritance through a will or a gift between spouses, also known in France as a donation au dernier vivant.
Usually drawn up with a notary, this arrangement can increase the surviving spouse’s entitlement beyond the statutory minimum and provide several options, such as usufruct over the entire estate, full ownership of the freely disposable portion, or a combination of the two.
Where there is no will or gift between spouses, the statutory inheritance rules apply by default. These rules will generally determine the extent of the surviving spouse’s rights over the family home.
Statutory Usufruct and Lifetime Rights to the Family Home
The Surviving Spouse’s Statutory Share Where There Are Children
When all the deceased’s children are children of the couple, the surviving spouse generally has a choice between two options:
- usufruct over the entire estate; or
- one quarter of the estate in full ownership.
Usufruct over the entire estate is often chosen because it allows the surviving spouse to continue living in the property and, where applicable, receive income from it for the rest of their life, while the children inherit the bare ownership.
Where the deceased has children from a previous relationship, the surviving spouse can no longer choose usufruct over the entire estate and generally receives one quarter in full ownership.
If there are no children but the deceased’s parents are still alive, the surviving spouse generally receives a larger share—usually one half or three quarters in full ownership depending on whether one or both parents are alive.
Where there are no heirs with reserved inheritance rights, the surviving spouse may inherit the entire estate.
Lifetime Right to the Family Home
Independently of their share of the inheritance, the surviving spouse may benefit from a lifetime right to the family home, allowing them to continue occupying the property until their own death, provided it was their main residence and was owned wholly or partly by the deceased.
This right is similar to a specific form of usufruct applying to the home and its furniture. It generally has to be expressly claimed within a limited period, usually one year after the death.
However, this lifetime right does not apply automatically in every situation, as the deceased may have excluded it through a will.
A separate protection—the temporary right to occupy the home for one year following the death—applies automatically and cannot be removed by a will.
How This Works with the Children’s Bare Ownership
When the surviving spouse chooses usufruct over the entire estate, the children become bare owners.
This split ownership has significant consequences when the property is sold. The bare owner cannot sell the entire property without the usufructuary’s agreement, and vice versa.
Selling the property in full ownership therefore requires the joint agreement of the surviving spouse as usufructuary and all the children as bare owners.
The proceeds are then divided according to valuation rules that take into account the usufructuary’s age.
For more information, see Capifrance’s guide to usufruct and bare ownership.
Steps Required to Sell the Property After a Death
Settling the Estate with a Notary
A property forming part of an estate cannot be sold until the estate has been at least partially settled by a notary.
The involvement of a notary is mandatory whenever real estate forms part of an estate, regardless of its value.
The notary first prepares the deed of notoriety (acte de notoriété), which officially identifies the heirs and establishes their respective rights according to the matrimonial property regime, the presence of children and any existing will.
The Real Estate Ownership Certificate
Once the deed of notoriety has been prepared, the notary draws up the real estate ownership certificate (attestation immobilière or attestation de propriété).
This document records the transfer of ownership to the heirs and surviving spouse.
It is then registered with the French land registration service, officially updating the property title.
Without this certificate, a valid deed of sale cannot be signed because the sellers cannot formally establish their ownership rights.
Agreement of the Heirs in Cases of Joint Ownership
Where several heirs jointly own the property—for example, the surviving spouse and the children—the sale of the property in full ownership generally requires the agreement of all co-owners.
If one heir refuses to sell while the others wish to proceed, the situation can become significantly more complicated and may ultimately require court proceedings.
In practice, however, the vast majority of estates are settled amicably. The heirs agree on the sale, the asking price and how the proceeds will be distributed according to each person’s rights, whether in full ownership, usufruct or bare ownership.
The Role of the Real Estate Advisor
Once the legal situation has been clarified with the notary, the next step is to establish an accurate market value and organise the sale.
Working with a local Capifrance real estate advisor provides ongoing professional and personal support, particularly where several heirs are involved and do not necessarily have the same expectations regarding the sale price or timeframe.
Once the property is ready to be marketed, it can be listed through Capifrance and presented to buyers actively searching for property.
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Example: Selling a House After a Death
Consider a married couple under the statutory community property regime who own a house valued at €350,000, purchased during the marriage. The husband dies, leaving his wife and their two children.
Half of the house, worth €175,000, already belongs to the wife as her share of the community property. The other half, also worth €175,000, becomes part of the deceased husband’s estate.
The wife chooses usufruct over this inherited share. She therefore becomes the usufructuary of the €175,000 forming part of the estate, in addition to the €175,000 she already owns outright. The two children become bare owners of the inherited share, divided equally between them.
If the family decides to sell the entire house two years later for, say, €360,000, the proceeds are divided accordingly.
The wife receives the value corresponding to her share in full ownership—approximately €180,000 on a proportional basis—plus the value of her usufruct over the inherited share, calculated according to a tax scale based on her age.
The older the usufructuary, the lower the value attributed to the usufruct and the higher the value attributed to the children’s bare ownership.
The remaining proceeds are paid to the two children in respect of their bare ownership. The notary calculates the exact distribution when the deed of sale is signed.
Taxation of the Sale for the Surviving Spouse
From a tax perspective, when the surviving spouse sells a property that was their main residence at the time of the death, they may benefit from the standard exemption from French real estate capital gains tax applicable to main residences.
If the surviving spouse has moved out, the exemption may still apply provided the property is sold within a reasonable period. It also applies where the surviving spouse continues to occupy the property until the sale.
If the property was not the main residence—for example, a second home or a rental property owned by the deceased—any capital gain is generally taxable.
However, the capital gain is calculated separately for each heir according to their respective share.
For the inherited portion, the acquisition value used for tax purposes generally corresponds to the value declared when the estate was settled. This often limits the taxable capital gain where the property is sold shortly after the death.
Holding-period allowances may also apply, depending on the origin and holding period of the relevant share of the property.
Inheritance tax should also be distinguished from capital gains tax.
In France, the surviving spouse is exempt from inheritance tax on the share they inherit, regardless of its value. Children, by contrast, remain subject to inheritance tax rules after applying their individual allowances.
This inheritance tax exemption does not, however, exempt the surviving spouse from any taxes that may become due when the property is subsequently sold.
Before putting the property on the market, it is strongly recommended to obtain a free online property valuation. This provides an initial indication of the property’s market value and can make discussions between the heirs about the asking price and future distribution of the proceeds easier.
The Specific Situation of PACS Partners and Unmarried Couples
No Automatic Inheritance Protection
Contrary to a common misconception, a surviving PACS partner does not automatically inherit from their deceased partner if there is no will.
A PACS agreement regulates certain aspects of the couple’s life and finances while both partners are alive, but it does not automatically give the surviving partner the status of heir.
Without a will naming them as a beneficiary, the surviving PACS partner may therefore be completely excluded from the estate—including from ownership of the shared home—even after many years together.
The property may instead pass to the deceased’s legal heirs, such as their children, parents, or siblings.
However, a surviving PACS partner does benefit from the temporary right to occupy the shared home free of charge for one year following the death, provided that the property was the couple’s main residence.
Unlike a married surviving spouse, however, a PACS partner does not benefit from the lifetime right to remain in the home
Unmarried Couples: Even More Limited Protection
An unmarried partner who is neither married nor in a PACS arrangement is in an even more vulnerable position from an inheritance perspective.
French law does not automatically grant an unmarried surviving partner any rights over their deceased partner’s estate, including the temporary occupancy rights available to married spouses and PACS partners.
Protection must therefore have been arranged in advance, for example through a will or, in certain circumstances, through joint ownership combined with a clause de tontine.
Ways to Protect the Surviving Partner
PACS and unmarried couples wishing to protect each other can consider several arrangements, including:
- drawing up a will in favour of the surviving partner, within the limits imposed by the reserved inheritance rights of heirs such as children;
- purchasing the property using a cross-ownership arrangement involving usufruct and bare ownership;
- including a clause de tontine in the purchase deed, which can allow the surviving partner to become the sole owner of the property without it passing through the estate in the usual way.
These arrangements must be planned while both partners are alive, ideally with the assistance of a notary
Precautions and Common Mistakes to Avoid
One of the most common mistakes is attempting to sell the property too quickly without first completing the necessary inheritance formalities with the notary.
Without a deed of notoriety and a real estate ownership certificate, a valid deed of sale cannot be signed. Failing to anticipate these formalities can therefore significantly delay the transaction.
Another common issue concerns the agreement of the heirs.
Even where the surviving spouse holds usufruct and believes they can make the decision alone, the property generally cannot be sold in full ownership without the agreement of the children who hold bare ownership—and vice versa.
Clear communication between all heirs, ideally supported by the notary and a real estate advisor, can help prevent disagreements that might otherwise delay the sale for months or even years.
Particular care is also required where the estate has an international dimension, for example where the deceased or an heir lives abroad or where a property is located in another country.
Work with a Capifrance Real Estate Advisor
Selling a property as part of an inheritance involves a combination of legal, tax, financial, and personal considerations at a time when the heirs—and particularly the surviving spouse—may not have the time or energy to manage everything themselves.
A local Capifrance real estate advisor can support the family throughout the process, including:
- providing a realistic valuation based on the property’s legal status, whether held in full ownership, usufruct, or joint ownership;
- coordinating with the notary;
- organising property viewings;
- helping manage discussions where heirs disagree over the asking price or sales timeline.
This ongoing support can help secure each stage of the transaction and facilitate the sale under the best possible conditions.
Conclusion
- The surviving spouse’s rights over the family home depend on the matrimonial property regime—community property or separation of property—and on whether a will or gift between spouses exists.
- Where there are children from the marriage, the surviving spouse can choose between usufruct over the entire estate or one quarter in full ownership. Where the deceased has children from a previous relationship, only the option of one quarter in full ownership is available.
- The lifetime right to the family home and the temporary right of occupancy protect the surviving spouse, subject to specific conditions and time limits.
- Selling the property requires the estate to be settled beforehand by a notary, including the preparation of the deed of notoriety and the real estate ownership certificate. In cases of joint ownership, the agreement of all heirs is generally required.
- The tax treatment of the sale varies according to the type of property—main residence or otherwise—and the seller’s legal rights, whether full ownership, usufruct, or bare ownership. The surviving spouse remains exempt from inheritance tax on the share they inherit.
- PACS partners and unmarried partners do not benefit from automatic inheritance protection and should therefore plan ahead through a will or specific contractual arrangements.
Given the complexity of these rules, working with a notary for the inheritance aspects and a real estate advisor for the sale remains the best way to manage this type of project with greater peace of mind, particularly at what is often an emotionally difficult time.
FAQ
Can the Surviving Spouse Remain in the House Without Taking Any Specific Steps?
Yes. The temporary right to occupy the home applies automatically for one year following the death, without any specific action being required, provided the property was the couple’s main residence.
To benefit from the lifetime right to the family home beyond this period, an express request must generally be made within the applicable time limit.
Does the Surviving Spouse Need the Children’s Agreement to Sell the House?
Yes, in most cases.
If the surviving spouse holds usufruct and the children hold bare ownership, selling the property in full ownership requires the agreement of all parties.
Similarly, if the surviving spouse and children own the property jointly, the agreement of all co-owners is generally required for the sale.
What Happens if One Child Refuses to Sell the Inherited House?
If an amicable agreement cannot be reached, it may be possible to apply to the court for authorisation to sell the property despite one co-owner’s refusal.
This may involve a licitation, a court-supervised auction designed to bring joint ownership to an end.
This should generally be considered a last resort after attempts to reach a family agreement have been exhausted.
Does a PACS Partner Automatically Inherit the House?
No.
Without a will naming them as a beneficiary, a PACS partner has no automatic inheritance rights over their deceased partner’s estate, including the shared home.
A will or an appropriate estate-planning arrangement established in advance is therefore required to provide greater protection.
How Is the Surviving Spouse’s Share Calculated When There Are Children from the Marriage?
The surviving spouse can choose between usufruct over the entire estate or one quarter of the estate in full ownership.
The most appropriate option often depends on the surviving spouse’s age, personal financial circumstances, and the nature of the assets involved.
It is therefore advisable to discuss the options with the notary handling the estate.
Do You Have to Wait Until the Estate Is Fully Settled Before Putting the Property on the Market?
Not necessarily.
Preparations for the sale—including obtaining a valuation, choosing a real estate advisor, and potentially beginning the marketing process—can start before the estate has been fully settled.
However, the final deed of sale cannot be signed until the required inheritance documents, including the deed of notoriety and real estate ownership certificate, have been completed.
Is the Sale of an Inherited House Subject to Capital Gains Tax?
It depends on the circumstances.
If the property is the surviving spouse’s main residence when it is sold, the main residence capital gains tax exemption may apply.
In other situations, a taxable capital gain may arise. However, for an inherited share, the calculation is generally based on the value declared for inheritance purposes, which often limits the taxable gain when the property is sold shortly after the death
What Is the Difference Between the Lifetime Right to the Family Home and the Temporary Right of Occupancy?
The temporary right of occupancy applies automatically during the first year following the death. No application is required, and the deceased cannot exclude this right through a will.
The lifetime right to the family home, by contrast, can continue beyond the first year and potentially until the surviving spouse’s death. However, it generally has to be expressly claimed and may have been excluded by the deceased through a will.
Author :
Frédéric Rémy – Director of Commercial Performance
A real estate professional for several years within the Capifrance network, I would like to share with you some essential advice to help you succeed in your real estate project with the support of our advisors.
