What rights does the surviving spouse have over the family home?

The temporary right to the home: one year, automatic and mandatory

For one year after the death, the surviving spouse who was actually occupying the home as their main residence enjoys it rent free, together with the furniture in it (Article 763 of the French Civil Code). If the home was rented, or partly owned by third parties, the rent or occupation indemnity is reimbursed to the spouse by the estate as it falls due, throughout the year.

This right is a direct effect of marriage and is a public-policy rule: the deceased cannot deprive their spouse of it, even by will (Article 763, last paragraph). The surviving PACS partner enjoys the same one-year temporary right (Article 515-6 of the Civil Code), but the deceased can remove it by will, the public-policy guarantee being reserved for married spouses.

The lifetime right to the home: an option to exercise within a year

Beyond the first year, the surviving spouse can enjoy, until their own death, a right of habitation over the home and a right of use over its furniture, where the home belonged to the spouses or entirely to the estate (Article 764 of the French Civil Code). This lifetime right is not automatic: it is an option, which the spouse must express within one year of the death (Article 765-1). That expression of intent may be tacit but, according to the French Court of Cassation, it cannot be inferred from merely remaining in the home.

Unlike the temporary right, the lifetime right can be excluded by the deceased, but only by an authentic will, received in the form required by Article 971 of the Civil Code (Article 764, paragraph 1). Its value is set against the spouse's share of the estate; if it exceeds that share, the spouse owes the estate no compensation (Article 765).

The trap: two distinct rights not to be confused

The classic mistake is to believe that the spouse is automatically protected for life: once the one-year option period has passed, the lifetime right is lost, and only the temporary right will have applied. The key differences are the following.

The temporary right is based on Article 763 of the French Civil Code, lasts one year from the death, applies automatically with no step to take, cannot be removed by the deceased because it is a public-policy rule, has no impact on the spouse's inheritance share, and covers a rented home, whose rent the estate reimburses. The lifetime right is based on Article 764, lasts until the surviving spouse's own death, must be opted for within the year of the death, can be excluded by the deceased but only by an authentic will, has its value set against the spouse's inheritance rights, and cannot cover a rented home, only a home owned by the spouses or by the estate.

Renting out, converting, or being awarded the home

• If the home no longer suits their needs, the spouse holding the lifetime right may rent it out, for any use other than commercial or agricultural, to generate the resources needed for new accommodation (Article 764 of the French Civil Code).
• By agreement with the heirs, the lifetime right can be converted into a life annuity or a lump sum (Article 766 of the Civil Code).
• At the division of the estate, the spouse can request the preferential allocation of the ownership of the home and its furniture (Article 831-2 of the Civil Code).
• These protections come on top of the spouse's inheritance rights: where all the children are children of both spouses, the spouse takes, at their choice, the usufruct of the entire estate or one quarter in full ownership; where one or more children are from another union, only one quarter in full ownership is available (Article 757 of the Civil Code).