Gift to the surviving spouse in an international context? Choose provisions made by will.

A gift between spouses, also known as a gift to the surviving spouse (donation au dernier vivant), is a precautionary deed received by your notaire which protects your surviving spouse on your death by improving their rights in your estate.

However, in an international context, this tool for protecting your spouse may not be appropriate.

Gifts between spouses are unknown in many foreign countries, and even prohibited in some! Depending on the law that applies to the gift, to a divorce or to the estate, a gift to the surviving spouse made in France may turn out to be entirely ineffective.

If, for example, you live abroad or you are a foreign national, it would be wise to consider making provisions by will rather than by a gift between spouses. You can include equivalent provisions in your mutual wills. The will is a tool known in every legal system in the world and will therefore avoid disputes on the substance. You will, however, need to make sure that your will meets the formal requirements for it to be recognised where the estate is opened.

Finally, remember that since the European Succession Regulation came into force, you can choose your national law to govern your estate. Failing that, the law of your last residence will apply.

If French law applies to your estate and you have made provisions by will equivalent to a gift between spouses, your surviving spouse will be able to inherit the largest disposable portion between spouses provided for by French law (shown in the table below, in French).