7 July 2026.
Where a surviving spouse elects to receive a statutory usufruct over the entire French estate, can that right also extend to assets in which the deceased owned only the bare title? In an opinion dated 20 May 2026, the French Court of Cassation answered yes.
Bare title is still part of the estate
An estate may include assets already subject to a usufruct held by another person. The deceased owned only the bare title, but that property right nevertheless forms part of the estate.
Where French law allows the surviving spouse to elect for a usufruct over all estate assets, the election is not confined to assets that the deceased owned outright. It also extends to the deceased’s bare-title interests.
A successive usufruct taking effect later
The surviving spouse then receives a successive usufruct. The spouse cannot immediately use the asset or receive its income because the first-ranking usufructuary retains those rights. The spouse’s usufruct will take effect when the existing usufruct ends, provided the spouse is still alive at that time.
This prevents assets held under split ownership from being artificially excluded from the spouse’s statutory election. It does not, however, convert bare title into full ownership on the date of death or affect the current usufructuary’s rights.
The election must be assessed as a whole
The choice between a usufruct over the entire estate and one quarter in full ownership depends on the family circumstances and is not available on identical terms in every case, particularly where the deceased had children who were not children of both spouses. The usufructuaries’ ages, income from the assets, earlier gifts and each person’s needs must also be considered.
Before the surviving spouse exercises the election, a detailed review of split-ownership assets and the order of the usufructs is therefore necessary to assess the practical value and timing of the rights received.
Read the opinion of the First Civil Chamber of the French Court of Cassation dated 20 May 2026 (No. 25-11.757) (in French).
Photograph: Barnabas Piper / Unsplash.
The notarial office does not contractually guarantee the accuracy or currency of this information. For advice on how it applies to your circumstances, please consult one of the office’s notaries.
