Protecting your spouse in the event of premature death or illness is one of the concerns of many couples. The gift to the last living is a solution to consider to ensure the future of your surviving spouse.
In order to protect their spouse in the event of death, married people have the right to make what is called a “donation to the last living”.
This is a gift between spouses that only benefits the surviving spouse. This one acquires more rights in the succession, but only within a certain limit. Indeed, only a fraction (in usufruct, bare ownership, and/or full ownership) of the deceased’s estate is covered. This makes it possible to establish a certain balance between the rights of the surviving spouse and the direct descendants.
It should also be noted that since August 22, 2007, the gift to the last living person is no longer subject to inheritance tax due to the total exemption from inheritance tax for the surviving spouse, laid down by law n ° 2007-1223 in favor work, employment and purchasing power (TEPA).
The couple must express their will by notarial deed. This donation can relate to all (total donation) or part (partial donation) of current or future property (property acquired during the marriage and before the death of one of the spouses). This may include property held solely by the donor or joint property between the couple. Given the uncertainty over the spouses – who will die first? how many heirs will there be in total? what assets will be affected by the estate? – most couples opt for a reciprocal donation to the last survivor. You should know that the donation to the last living can be revoked at any time.
When there are descendants, three options are generally possible (see table below). In practice, the option for all in usufruct is the most widespread. The universal usufruct appears, in fact, as a suitable means of covering the needs of the surviving spouse. This option allows the surviving spouse to benefit from the usufruct in the presence of non-common children.
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