Article 745quater of the Civil Code (Code civil) lays down special rules for the case where ownership of certain property is shared between the deceased’s descendants who receive the bare ownership and the surviving spouse who receives the usufruct.
In principle, the surviving spouse or one of the bare owners can request the full or partial conversion of the usufruct, i.e. one party can purchase the bare ownership or usufruct from the other party.
However, certain property is excluded from this rule:
Article 745octies of the Civil Code provides similar protection, for the benefit of the legal cohabitant, for an immovable property that was used as the family’s common residence and its furniture.
Furthermore, Article 915bis of the Civil Code provides for the forced heirship of a portion of the estate (i.e. a reserved portion) for the benefit of the surviving spouse and stipulates, in all cases, that this forced heirship must include at least the immovable property that was used as the family’s main dwelling and its furniture.
Where all or part of the succession consists of an agricultural holding, the heirs in a direct descending line can take over, based on a valuation, the movable and immovable property forming the agricultural holding (Article 1, first paragraph, of the Law of 29 August 1988 on succession rules for agricultural holdings with a view to promoting their continuity (loi du 29 août 1988 relative au régime successoral des exploitations agricoles en vue d'en promouvoir la continuité)).
If all or part of the succession does not consist of an agricultural holding, but is made up, instead, of immovable properties that formed part of the deceased’s agricultural holding, and if one of the heirs in a direct descending line is currently operating those properties within their own agricultural holding, the latter can also take over these properties, based on a valuation, subject to the provisions of the Civil Code laying down the rights of the surviving spouse and surviving legal cohabitant (Article 1, third paragraph, of the Law of 29 August 1988).
Lastly, Article 4 of the Law of 16 May 1900 on succession rules for small inheritances (loi du 16 mai 1900 sur le régime successoral des petits héritages) provides that, where all or part of a succession consists of immovable properties for which the full ‘cadastral income’ (notional rental income) does not exceed EUR 1 565 (Article 1 of the Law), without prejudice to the rights conferred on the surviving spouse by Article 1446 of the Civil Code, each of the heirs in a direct line and, where applicable, the surviving spouse who is not divorced or legally separated from the deceased can take over, based on a valuation, either the dwelling occupied upon death by the deceased, his/her spouse or one of his/her descendants and its furniture, or the house, furniture and land that the occupier of the house personally used on his/her own behalf, the agricultural equipment and the animals used for cultivation, or the goods, raw materials, professional equipment and other accessories used on a commercial, small-scale or industrial basis.
These provisions are mandatory, but the law does not expressly state whether they should be applied irrespective of the applicable law.
Several procedures exist to guarantee these rights:
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