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If we have had children from a previous union, in the event of death, is the current spouse protected? What are his rights? Are they different in case of marriage, PACS or cohabitation?
An absolute right to HOUSING
Whatever the conjugal situation (married, PACS or cohabiting), and even if the deceased had children from a first union, the second surviving spouse has a right of enjoyment to housing which is absolute but temporary. This right is absolute because the children of the deceased spouse cannot ask the second spouse to leave the household for one year from the death of the partner. During this period, the second spouse has the right to live in the accommodation free of charge and the costs relating to the marital home will be borne by the estate. This right concerns all types of property: common property of the couple, property of the deceased or lease… Concerning the lease, if it has been taken out in the name of a single name,
In case of MARRIAGE
If there are children from a first union, the second surviving spouse only has one-quarter full ownership of the estate to share. This mass depends on the matrimonial regime, the law providing for a communist regime, that is to say a sharing of half of the property purchased during the marriage. To protect your spouse, it is therefore preferable to make a marriage contract in order to improve the rights of the second spouse in full ownership while preserving the children of a first union. It is also possible to consider a donation to the last living to protect the second surviving spouse until his own death, but this donation will be limited. In the absence of having drawn up a marriage contract or a will concerning the marital home,
In case of Pacs
The PACS is a contract, which, by default, provides for a regime of separation of property, therefore not very protective for the second PACS partner. This contract is flexible, and it is possible to provide for a community of property regime which will allow, in the event of death, to share the property acquired during the PACS. Attention, in case of succession, the PACS partner has no rights. The transmission is carried out by will only within the limit of the quota normally available, when there are children resulting from a first union. For example, one can grant by will a preferential right of common domicile to one’s partner, that is to say that the children of a previous union will not be able to recover the domicile in which the PACS partner lives. Monetary arrangements can also be considered such as, for example,
In case of COMBINATION
Between cohabitants, there is no right of succession, that is to say that one does not inherit from the other. If nothing is planned during the lifetime of the cohabitants, the surviving cohabitant therefore risks finding themselves in a very precarious situation, especially if they have children from a previous union. This is why it is strongly advised to make a will to protect your partner financially and allow him to keep his accommodation. Indeed, if there was no will, only the children can benefit from the inheritance.
A preferential allocation clause for the common residence and financial arrangements may be provided within the limit of the available portion. Purchasing life insurance also protects the surviving partner.
DAMY Law Firm, Nice, The rights of the second spouse in the event of death, Update 2022
