Does the surviving spouse have to pay inheritance tax?

Losing a spouse also means facing practical questions at the worst possible time: will the State have to be paid before the estate can be inherited? Will it be possible to stay in the family home? What happens if the children become co-owners of the house? These questions come up systematically in estate files, and confusion between inheritance tax, rights over the home and exit from joint ownership (indivision) is common. This article clarifies the central rule (a married surviving spouse pays no inheritance tax), then sets out what happens to the home and how joint ownership of an estate (indivision successorale) works, two areas where property law and family law overlap.

The basic rule: a married surviving spouse is fully exempt from inheritance tax

This is the most important and most reassuring point. Since Law No. 2007-1223 of 21 August 2007 in favour of work, employment and purchasing power, known as the TEPA law, a married surviving spouse pays no inheritance tax on what he or she receives from the estate of the deceased spouse. This exemption is set out in Article 796-0 bis of the French General Tax Code (Code général des impôts, CGI).

In practical terms, whether the surviving spouse inherits €50,000 or several million, the tax bill for transfer duties on death is nil. There is no scale, no allowance to monitor and no progressive band: the exemption is total and unconditional for the share passing to the married spouse.

This rule applies to every form of transfer to the surviving spouse: the share received as a statutory heir, assets allocated by will, and also the usufruct received over the estate. The question of inheritance tax for a surviving spouse therefore comes down, in the vast majority of cases, to this simple answer: there is nothing to pay.

Do not confuse tax exemption with succession rights

A distinction is essential to understand what follows. The exemption in Article 796-0 bis of the CGI answers the question "how much must the surviving spouse pay to the State?". It does not answer the question "what exactly does the surviving spouse receive?".

What the surviving spouse receives depends on other rules, those of the French Civil Code on the devolution of estates. Where all the children are issue of both spouses, Article 757 of the French Civil Code gives the survivor the choice between the usufruct of the whole estate or one quarter in full ownership. Where there are children from a previous union, only the quarter in full ownership is available. Taxation and civil law rights are two separate levels: the first is neutralised for the spouse, the second governs the division of the estate.

Note: a cohabitee and a PACS partner are not the same thing

The exemption applies to the spouse, that is, the married person. Other forms of cohabitation do not offer the same protection, and this is a source of serious errors.

A partner bound by a civil partnership (pacte civil de solidarité, PACS) benefits from the same inheritance tax exemption as a spouse, under the same Article 796-0 bis of the CGI. But there is a significant trap: a PACS partner is not a statutory heir. Without a will, the partner receives nothing from the estate, even if the couple lived together for twenty years. The tax exemption is then of no use, as nothing is transferred. For a PACS partner to inherit, a will naming the partner is indispensable.

A cohabitee, for his or her part, is treated by the law as a third party to the estate. He or she is neither a statutory heir nor exempt. If he or she receives an asset by will, it is taxed at the rate applicable between unrelated persons, namely 60% after a very small allowance. An unmarried couple not in a PACS who bought a home together therefore exposes the survivor to heavy taxation on the half belonging to the deceased. This is one of the reasons why the choice of the form of union has direct consequences for property. The impact of the regime chosen by PACS partners on the purchase of a home is covered in our article on the PACS, joint ownership and separation of property.

What happens to the home: the right to stay

The surviving spouse's most concrete fear is having to leave the home. Family law provides two successive and complementary protections, which make the succession of the home a subject in its own right.

The temporary right of residence for one year

Article 763 of the French Civil Code grants the surviving spouse, as of right and free of charge, the enjoyment of the home occupied as a main residence at the date of death, together with the furniture in it, for the year following the death. This right applies whether the home belongs to the couple, forms entirely part of the estate, or is rented (in which case the estate reimburses the rent to the survivor).

This temporary right is a matter of public policy: the deceased cannot deprive the spouse of it by will. It gives the survivor time to organise his or her situation, without immediate pressure, in the months following the bereavement.

The lifetime right of residence

After the first year, Article 764 of the French Civil Code allows the surviving spouse to remain in the home until death. This lifetime right of residence (droit viager au logement) covers the dwelling and the furniture, provided that the home belonged to the spouses or forms entirely part of the estate.

Two points deserve attention. First, this lifetime right is not automatic: the spouse must claim it within the year of the death, failing which he or she is deemed to have waived it. Second, unlike the temporary right, the deceased may deprive the spouse of the lifetime right, but only by a will made before a notary. A simple handwritten will (testament olographe) is not enough to remove this protection.

The value of this lifetime right is set against the spouse's succession rights. If it is lower than what the spouse receives, he or she keeps the difference; if it is higher, he or she does not have to compensate the other heirs. This mechanism secures the right to remain in the home without creating a debt towards the children.

Preferential allocation of the home

The surviving spouse can go further than the mere right of residence: he or she can ask to become the owner of the home. Preferential allocation (attribution préférentielle), provided for by Articles 831-2 and 832 of the French Civil Code, allows the spouse to be allocated in priority, on partition, ownership of the premises used as the home. For the home and its furniture, this allocation is available as of right when the spouse requests it: the other heirs cannot object.

In return, if the value of the allocated asset exceeds the spouse's share of the estate, the spouse must pay a balancing payment (soulte) to the other heirs, that is, a compensatory sum. Financing this payment is a genuine estate planning issue, often handled with the help of a notary and, in the event of disagreement, a lawyer.

Joint ownership of an estate: when several heirs own together

The death of a spouse almost always creates joint ownership of the estate. This is the situation in which several heirs (most often the surviving spouse and the children) own the assets of the estate together, each for a share, without any asset being physically divided. The family home is not cut in two: it belongs jointly to all, in proportion to their respective rights.

How joint ownership arises on death

Take a common situation. A couple married under the statutory regime of community of acquired property (communauté réduite aux acquêts) own the main residence. On the death of one spouse, half of the home already belongs to the survivor by virtue of the community: this is not part of the estate, it is the survivor's share as owner. Only the other half forms part of the estate and is shared among the heirs.

If the spouse opts for the quarter in full ownership and there are children, the home ends up held in joint ownership between the surviving spouse (his or her half of the community, plus his or her share of the estate) and the children (the remainder). If the spouse opts for the usufruct of the whole, the structure is different: the spouse holds the usufruct and the children hold the bare ownership (nue-propriété), which is a dismemberment of ownership rather than ordinary joint ownership. Understanding which of these two situations applies changes everything for the management of the property.

Rules for managing jointly owned property

Joint ownership imposes decision-making rules that can become a source of deadlock. Acts of ordinary administration and decisions relating to the management of jointly owned property require the agreement of the joint owners holding at least two thirds of the rights. By contrast, acts of disposal, first and foremost the sale of the property, require in principle the unanimity of the joint owners. How joint ownership works and the rights of each joint owner are covered separately in our article on joint ownership in the Civil Code.

This unanimity requirement explains many disputes. If the surviving spouse wishes to sell the home to fund a care home or more suitable accommodation, but a child objects, the sale is blocked. Conversely, a child who needs liquidity may want to force a sale against the wishes of the surviving parent. These tensions, frequent in blended families, combine family law and property law.

Exiting joint ownership

The principle laid down in Article 815 of the French Civil Code is clear:

No one may be compelled to remain in joint ownership and partition may always be sought, unless it has been stayed by judgment or agreement.

Each joint owner may therefore request partition at any time. Three routes exist. The first is amicable partition, where all the heirs agree on the division: this is the quickest and least costly solution. The second is the sale of the property and division of the price, possibly in favour of one of the joint owners. The third, in the event of persistent deadlock, is judicial partition: the court orders the partition operations and, if the property cannot conveniently be divided, its sale by auction (licitation). On the implementation of this principle and the solutions for exiting blocked joint ownership, see our analysis of the rule that no one is bound to remain in joint ownership.

To avoid a forced sale of the home, the surviving spouse has two safeguards already mentioned: the lifetime right of residence under Article 764 of the French Civil Code, which allows the spouse to remain in the home even if the joint ownership is partitioned, and preferential allocation under Articles 831-2 and 832, which allows the spouse to become sole owner. These tools are the key to the survivor's property protection.

What remains taxable in the estate despite the spouse's exemption

The surviving spouse's exemption does not mean that the estate escapes all taxation. A clear distinction must be drawn between the spouse (exempt) and the other heirs, in particular the children.

The children are subject to inheritance tax at the direct-line scale, after application of the personal allowance of €100,000 per parent and per child provided for by the CGI. Thus, in a family where the estate is shared between the surviving spouse and the children, the spouse pays nothing, but the children may have tax to pay on their share, in particular on the bare ownership of the home where the spouse has opted for the usufruct.

It should also be borne in mind that the exemption concerns inheritance tax, not the other taxes attached to the property itself. Property tax (taxe foncière), residence tax where applicable, and capital gains on property in the event of a later resale are governed by their own rules. A surviving spouse who sells the home a few years after the death may be subject to capital gains tax, subject to the exemptions that apply, in particular that for the main residence.

Planning ahead: tools to protect the spouse and the home

The best protection is prepared during the lifetime of both spouses. Several tools make it possible to organise the transfer and to avoid deadlock over the home.

A gift between spouses, often called a donation au dernier vivant, widens the options available to the survivor, in particular by opening up more favourable shares than the statutory devolution alone. A will makes it possible to specify wishes, in particular for a PACS partner who, without a will, would inherit nothing. The choice of matrimonial regime also matters: a clause allocating the whole community to the survivor, under a universal community regime, allows the spouse to take all the community assets, excluding the children of the first estate.

Each of these solutions has consequences for the children's rights, for the forced heirship (réserve héréditaire) guaranteed to them, and for the ownership structure of the home. They are designed case by case, combining the family objective and the asset analysis of the property concerned.

Conclusion: neutral taxation, but a property division to be secured

On the tax question, the answer is clear: a married surviving spouse pays no inheritance tax, and nor does a PACS partner, provided he or she has been named heir by will. The real issue is therefore not tax, it is property and estate planning. What happens to the home, the choice between usufruct and full ownership, the creation of joint ownership with the children and the conditions for exiting it are the areas where the real difficulties arise, often long after the death.

The position that emerges from the files is simple: never reason on the basis that the absence of inheritance tax settles everything. A surviving spouse may be tax exempt and nevertheless be left vulnerable by blocked joint ownership or by a lack of planning for the home. Before accepting an estate or choosing between usufruct and full ownership, have the exact composition of the property assets and the applicable matrimonial regime analysed: it is this diagnosis, and not the tax aspect alone, that determines the survivor's real protection.

Frequently asked questions

Does a surviving spouse pay inheritance tax in 2025?

No. A married surviving spouse is fully exempt from inheritance tax under Article 796-0 bis of the French General Tax Code, resulting from Law No. 2007-1223 of 21 August 2007, known as the TEPA law. This exemption is total and uncapped, whatever the value transferred. A PACS partner benefits from the same exemption, but only if named heir by will, failing which the partner inherits nothing.

Is a cohabitee exempt from inheritance tax like a spouse?

No, and this is a major difference. A cohabitee, that is, a person living together with a partner without marriage or PACS, is treated for tax purposes as a third party outside the family. If he or she receives an asset by will, it is taxed at 60% after a very small allowance. An unmarried couple not in a PACS who own a home together therefore expose the survivor to heavy taxation, which often justifies formalising the union or planning ahead with suitable estate planning tools.

Can the surviving spouse stay in the family home after the death?

Yes, and the law provides two protections. Article 763 of the French Civil Code guarantees free enjoyment of the home for the year following the death, automatically and as a matter of public policy. Beyond that, Article 764 of the French Civil Code gives a lifetime right of residence, until death, provided it is claimed within the year. The spouse may also request preferential allocation of the home in order to become its owner, under Articles 831-2 and 832 of the French Civil Code.

What is joint ownership of an estate and how can it be ended?

Joint ownership of an estate is the situation in which several heirs, often the surviving spouse and the children, own the assets of the estate together, each for a share, without physical division. Article 815 of the French Civil Code lays down the principle that no one may be compelled to remain in joint ownership: each joint owner may seek partition at any time. Exit is achieved by amicable partition, by sale of the property with division of the price, or, in the event of deadlock, by judicial partition that may lead to a sale by auction.

Do the children pay inheritance tax even if the spouse pays nothing?

Yes. The exemption applies only to the surviving spouse and the PACS partner, not to the children. They are subject to inheritance tax in the direct line, after an allowance of €100,000 per parent and per child. Where the spouse opts for the usufruct of the home, the children receive the bare ownership and may have tax to pay on the value of that bare ownership, calculated according to their age and that of the usufructuary.

Can the surviving spouse sell alone a home partly inherited?

No, if it is jointly owned property. The sale of property held in joint ownership is an act of disposal that in principle requires the unanimity of all the joint owners. If a child objects, the sale is blocked, unless the matter is brought before the court. To avoid this dependence, the spouse may request preferential allocation of the home in order to become sole owner, at the cost of paying a balancing payment to the other heirs if the value of the property exceeds the spouse's share.

Is a will needed to protect a spouse from inheritance tax?

For the tax aspect, no: the exemption of a married spouse applies as of right. However, a will or a gift between spouses is useful to improve what the spouse receives, in particular by allocating a larger share or securing the home. For a PACS partner, a will is indispensable: without it, the partner does not inherit, and the tax exemption has no effect as nothing is transferred.