Donations between spouses – Rules

November 2017

Donations between spouses are subject to specific rules, and may sometimes be dismissed. They are often more effective than the will to protect the surviving spouse. How to give her spouse.

Property present and future

According to Article 943 of the Civil Code, donations can not normally relate to existing assets, belonging to the donor at the time of the act.

Notwithstanding this rule does not apply to donations made by marriage contract and donations between spouses during marriage (art. 945).

Spouses or future spouses can therefore give present goods and future.

Generally, donations between spouses must respect the rights of heirs. They can therefore relate only to the special disposable portion to the spouse.

Donations by marriage contract

These are donations made before marriage, by insertion into the marriage contract.

A third party can make a donation to the future spouses or one of them. It is then a "dot", which obeys the ordinary donations, so fiscally civilian. The donation can also be made for the benefit of the unborn.
This type of donation can not be canceled for ingratitude.

Donations between future spouses obey the law of all donations. They are therefore in principle irrevocable, except in cases of divorce (see below).
This type of donation can not be canceled occurrence of child, even if she remarries.
In case of change of matrimonial regime, these donations are still valid. Unless the spouses decide to change by agreement.
These donations are naturally deciduous if the marriage ultimately did not take place.

Donations during marriage

A typical donation is usually irrevocable. Except in three specific cases:
1. When the beneficiary does not respect the conditions under which the donation was made (maintenance of a building, etc.).
2. In case of extreme ingratitude (attempted murder, assault, child support refusal, etc.)
3. When the donor later a child while he was childless at the time of donation.
The donor must request revocation of the donation within five years following the birth of the child.
This rule also applies in case of full adoption.

Whatever their form, donations between spouses during marriage are irrevocable (except as above) if they relate to present goods. This rule is of public order and remains valid even if the deed of gift to the contrary. Donations between spouses, however, are removed at any time if they relate to things to come, and have not yet taken effect.
Before 1 January 2005, all donations between spouses were dismissed freely.

Notary fees applicable to the establishment of the act are governed by regulations.

Disguised donations

These are acts which, under the guise of an onerous contract, actually conceal donations. They may be reclassified by the tax but are normally valid for civil purposes, even if they can be reduced to respect the rights of heirs.

Since 1 January 2005, disguised gifts between spouses (or through intermediaries) are not void.

After divorce

Whatever the form of divorce and the imputation of wrongs,

1. marital donations and benefits that took effect before the divorce are maintained, as in nature, we can not return a donation of present goods.
Example: A husband has funded only purchase a common good, providing a well unrequited community, etc.

2. donations and matrimonial advantages that have not yet produced their effect is revoked as of right.
Example: full attribution clause of the surviving spouse in the community regimes universal community, donation to the survivor, etc.

The spouse who granted the marital advantage or donation may, however, waive the benefit of the automatic revocation.

See also the last living Donations

See also

Download this article (PDF)
download this article (PDF