You divorced in England, remarried, and now own a house in the Dordogne or the Luberon with your second wife or husband. Your children from your first marriage live in Britain. You assume your English will, which leaves everything to your spouse, settles the matter. It does not. If French law governs your succession, your children from the first marriage own a protected share of your estate called the réserve héréditaire, which no will can take away, and your surviving spouse receives far less than most British couples expect. The Cour de cassation confirmed this as recently as 5 March 2025 in a case opposing a second wife to a daughter born of a previous union. This article explains, in plain English, what French law already gives your second spouse when children of a first marriage exist, how a gift between spouses, known as a donation entre époux or donation au dernier vivant, can increase that share, where the hard limits lie for children of another bed, known as enfants d’un autre lit, and how to challenge a settlement that ignores these rights. Every French term is explained at first use, and every decisive rule is quoted from the official text.

I. What French Law Already Gives Your Second Spouse When Children of a First Marriage Exist

A. Why Your Surviving Spouse Receives Only a Quarter in Full Ownership, Never the Whole Usufruct

Under English law, you can leave your entire estate to your spouse and disinherit your children altogether, subject only to a possible court order under the Inheritance (Provision for Family and Dependants) Act 1975. French law works the opposite way. Children are héritiers réservataires, meaning forced heirs with a guaranteed minimum share, while the surviving spouse, called the conjoint survivant, takes only what the statute allows once children exist.

The starting point is article 757 of the Civil Code, which reads: “Si l’époux prédécédé laisse des enfants ou descendants, le conjoint survivant recueille, à son choix, l’usufruit de la totalité des biens existants ou la propriété du quart des biens lorsque tous les enfants sont issus des deux époux et la propriété du quart en présence d’un ou plusieurs enfants qui ne sont pas issus des deux époux.” In ordinary language, where all the children are the children of both spouses, the survivor chooses between the usufruit, meaning the lifetime right to use the property and take its income, of the whole estate, or outright ownership, called pleine propriété, of one quarter. But where at least one child is not the child of both spouses, there is no choice at all: the survivor receives ownership of one quarter of the existing assets, and nothing more by operation of law.

This distinction catches many British families by surprise, because the survivor often assumes the usufruct option is always available. The Cour de cassation has now stated the rule with unmistakable clarity. In Cass. 1st civ., 5 March 2025, no. 23-11.430, a man married under séparation de biens, meaning separation of property, died leaving his wife and a daughter born of a previous union. He had made a holographic will, called a testament olographe, dated 2002 giving his wife the usufruct of his whole succession, confirmed by a gift between spouses of 2006. After his death, his widow claimed the succession, then died herself, and her own two daughters continued the proceedings against the daughter of the first marriage. The Nîmes court of appeal treated the widow as if she had taken the usufruct, which died with her, leaving her daughters with nothing to claim. The Cour de cassation quashed that reasoning, holding: “Selon ce texte, si l’époux prédécédé laisse un ou plusieurs enfants qui ne sont pas issus des deux époux, le conjoint survivant recueille la propriété du quart des biens existants.” It added the decisive sentence: “En statuant ainsi, alors qu’en présence d’un enfant non commun, les droits légaux du conjoint survivant ne pouvaient être que de la propriété du quart des biens existants, sans faculté d’option pour l’usufruit de la totalité de ces biens, la cour d’appel a violé le texte susvisé.” In short, with a non-common child in the picture, the usufruct option simply does not exist at law, and any court that pretends otherwise violates article 757.

For a British reader, the practical lesson is direct. If you die owning a French house and French law applies, and you have a child from a previous relationship, your second spouse inherits one quarter of your French estate in full ownership by default. Your children share the remaining three quarters. No English will leaving “everything to my wife” changes this outcome on its own, because the applicable law, not the language of the will, decides. If the notaire, the French succession lawyer-officer who settles every estate, offers your spouse the usufruct of everything as though it were an open choice, that offer is wrong in law where a non-common child exists, and it should be challenged before the option crystallises in the settlement papers.

Note one subtlety the 2025 decision illustrates: gifts you made during your lifetime still matter. The deceased had given his wife the usufruct of everything by will and by gift between spouses, which goes beyond her legal quarter. Such gifts are valid in principle, but they are measured against the disposable share, called the quotité disponible, and the children can claw back the excess through the action en réduction, the court claim for reduction, examined in Part II. The legal quarter described here is therefore a floor the spouse always keeps, not a ceiling on what careful planning can add.

B. How Your Spouse Keeps a Roof Over Their Head: the Lifetime Right to the Family Home

French law softens the quarter share with a separate protection that matters enormously where the main asset is the house itself: the surviving spouse who was actually living in the home as their main residence at the death holds a lifetime right to stay there, called the droit viager au logement, together with a right of use over the furniture in it, called the droit d’usage sur le mobilier. This right exists even where the children of the first marriage inherit the bricks and mortar around it, and it applies regardless of whether the children are common or not.

Article 764 of the Civil Code provides: “le conjoint successible qui occupait effectivement, à l’époque du décès, à titre d’habitation principale, un logement appartenant aux époux ou dépendant totalement de la succession, a sur ce logement, jusqu’à son décès, un droit d’habitation et un droit d’usage sur le mobilier, compris dans la succession, le garnissant.” Three conditions therefore decide everything: the spouse must be successible, meaning legally entitled to inherit rather than divorced or disinherited by an applicable foreign law; the occupation at death must have been effective and as the main home, not a holiday house visited twice a year; and the dwelling must belong to the couple or fall entirely within the estate. A British couple whose French property is purely a second home while their main residence is in Kent will struggle to meet the second condition, whereas a couple genuinely settled in France, paying taxe d’habitation and registered with the local doctor, satisfies it naturally.

Two features of this right deserve attention from British owners. First, you can only take it away by a formal will made in the strict forms of article 971, meaning a notarised will, called a testament authentique, or a fully handwritten, dated and signed holographic will. Under the same article 764, such a deprivation “est sans incidence sur les droits d’usufruit que le conjoint recueille en vertu de la loi ou d’une libéralité”, so removing the right to remain does not remove usufruct rights the spouse holds elsewhere. A vague clause in an English will stating that the children should have the house unencumbered by any claim will not meet the French formal standard and will simply be ignored by the notaire. Second, the right is flexible in practice. The surviving spouse, the heirs, or any one of them can demand an inventory of the furniture and a condition report of the property, and where the house no longer suits the spouse’s needs, the spouse may let it for non-commercial use to fund new accommodation. Above all, article 766 of the Civil Code allows the family to convert these occupation rights by agreement into a lifetime annuity, called a rente viagère, or a capital sum: “Le conjoint successible et les héritiers peuvent, par convention, convertir les droits d’habitation et d’usage en une rente viagère ou en capital.” Where minor children or protected adults are among the heirs, the family protection judge, called the juge des tutelles, must approve the deal.

In blended families this conversion power is often the sensible compromise. The children of the first marriage, who may live in Manchester and have no use for a house in the Lot, usually prefer cash or an annuity charge over co-owning a holiday home with a step-parent they barely know. The surviving spouse, often retired in France, usually prefers to stay put or to unlock capital for care costs. A negotiated conversion avoids years of indivision, the joint ownership that follows every French death until the estate is divided, and the forced sale, called licitation, that ends it badly. But conversion requires unanimous agreement, so it should be anticipated while everyone is still talking: a written family agreement prepared with the notaire, costed against the value of the lifetime right, carries far more weight than arguments after positions have hardened. And where agreement proves impossible, the spouse’s lifetime right remains fully enforceable against a sale: no buyer acquires the house discharged of it, which gives the spouse real leverage in any negotiation with the children.

II. How to Give Your Second Spouse More, and Where the Children of the First Marriage Draw the Line

A. Which Gift Between Spouses Actually Works When the Children Are Not Common

The standard French tool for protecting a spouse is the gift between spouses, called the donation entre époux, most commonly signed as a donation au dernier vivant, meaning a gift to the last surviving spouse, before a French notaire during the marriage. The official Service Public guidance explains the procedure step by step for residents. Its effect is to widen the spouse’s options far beyond the legal quarter described above, within a special ceiling set by article 1094-1 of the Civil Code. Where the deceased leaves children, whether or not they are children of the marriage, the owner may give the other spouse “soit de la propriété de ce dont il pourrait disposer en faveur d’un étranger, soit d’un quart de ses biens en propriété et des trois autres quarts en usufruit, soit encore de la totalité de ses biens en usufruit seulement.” In plain terms, three choices exist: the ordinary disposable share that could go to a stranger; one quarter in full ownership plus three quarters in usufruct; or the usufruct of everything. For most British couples whose wealth sits in the French house, the second or third option is the one that counts, because it lets the survivor live in the whole property for life while the children keep the underlying ownership, called the nue-propriété, as their guaranteed stake.

A practical device set by article 1094-1, which many notaires underuse, is that unless the giver forbids it, “le conjoint survivant peut cantonner son émolument sur une partie des biens dont il a été disposé en sa faveur”, and “Cette limitation ne peut être considérée comme une libéralité faite aux autres successibles.” Cantonnement, meaning ring-fencing the gift, lets the surviving spouse take the usufruct over the house only and release the bank accounts or the buy-to-let flat to the children immediately. This is precisely the settlement blended families usually want: the step-parent keeps the home, the children of the first marriage receive liquid assets without waiting for a second death, and nobody can recharacterise the release as a taxable gift to the children. British clients should therefore ask the notaire, when signing the donation, to confirm in writing that cantonnement is authorised, because a blanket gift without that flexibility forces an all-or-nothing choice years later when family relations may have cooled.

Three traps surround these gifts where children of a first marriage exist. The first concerns gifts written into the marriage contract itself. Article 1090 of the Civil Code states: “Toutes donations faites aux époux par leur contrat de mariage seront, lors de l’ouverture de la succession du donateur, réductibles à la portion dont la loi lui permettait de disposer.” A generous clause slipped into a French marriage contract before a second wedding is therefore always reducible to the disposable share at death; it never binds the children beyond that ceiling, whatever the couple believed at the time.

The second trap is the matrimonial regime itself. Some advisers suggest that marrying or switching to a universal community, called communauté universelle, with a clause giving everything to the survivor solves the problem without any gift. Where children of another bed exist, article 1527 of the Civil Code cuts that strategy down to size: “au cas où il y aurait des enfants qui ne seraient pas issus des deux époux, toute convention qui aurait pour conséquence de donner à l’un des époux au-delà de la portion réglée par l’article 1094-1”, deprived of effect for the excess, the article adding that only ordinary savings from joint work and household economies escape this cut-back. Any matrimonial advantage pushing the survivor beyond the article 1094-1 ceiling is ineffective for the excess, though ordinary savings from joint work and household economies do not count as such an advantage. The children can even waive this retranchement, called the action en retranchement, in advance in the forms of articles 929 to 930-1, in which case they gain a legal mortgage, called hypothèque légale, securing their eventual claim, and can demand a furniture inventory and a property condition report despite any clause to the contrary. For a British couple considering a change of regime before a French notaire, the message is that universal community protects the survivor fully only where all children are common; in a blended family it is capped exactly like a gift.

The third trap is money tracing. Suppose you give your spouse 300,000 euros so that she can buy the French house in her own name. Article 1099-1 of the Civil Code provides: “Quand un époux acquiert un bien avec des deniers qui lui ont été donnés par l’autre à cette fin, la donation n’est que des deniers et non du bien auquel ils sont employés.” The gift covers the money, not the house bought with it, and the donor’s heirs hold a claim for a sum following the current value of the property. Your children of the first marriage can therefore pursue the value even though the deeds show their step-mother as sole owner. Funding a purchase through your spouse, without a proper gift deed and valuation record, creates litigation rather than protection.

One final cross-border warning belongs here. An English will choosing English law for your worldwide estate, called a professio juris choice under article 22 of EU Succession Regulation no. 650/2012, is available even to British nationals for their French assets, and it can designate English law to govern the succession. But that choice does not reliably defeat the French forced heirship on a French house: French courts treat the réserve as carrying strong public-policy weight, and since the reform of 2021, now codified in the closing paragraph of the article on the réserve itself, children protected nowhere under the applicable foreign law can levy a compensatory claim, called a prélèvement compensatoire, on assets situated in France. An English-law will remains useful for everything the réserve does not cover, from appointing executors to organising English assets, but for the French house in a blended family it must be drafted as part of a French-law strategy built around articles 757, 764 and 1094-1, not as a substitute for one.

B. How the Children Enforce Their Share, How Long They Have, and Which Court Decides

The children’s guaranteed share is fixed by arithmetic, not by discretion. Article 913 of the Civil Code states: “Les libéralités, soit par actes entre vifs, soit par testament, ne pourront excéder la moitié des biens du disposant, s’il ne laisse à son décès qu’un enfant ; le tiers, s’il laisse deux enfants ; le quart, s’il en laisse trois ou un plus grand nombre.” With one child from the first marriage, half the estate is reserved and half is disposable; with two children, one third is disposable; with three or more, one quarter. Every gift between spouses, every lifetime gift to the children themselves, and every legacy in the English or French will is notionally added back into a single mass, called the masse de calcul, and anything above the disposable line must be reduced. Where the deceased or at least one child is, at the death, a national of an EU Member State or habitually resident there, and the foreign law governing the succession offers the children no reserved-share mechanism at all, the same article lets each child levy a prélèvement compensatoire on assets in France so as to recover the French reserved rights, within their limit. A British child settled in France, or a French-resident British father, therefore falls squarely inside this safety net even where an English-law choice purports to disinherit.

Crucially, reduction in modern French law is paid in money, not by taking the house back. Article 924 of the Civil Code provides: “Lorsque la libéralité excède la quotité disponible, le gratifié, successible ou non successible, doit indemniser les héritiers réservataires à concurrence de la portion excessive de la libéralité, quel que soit cet excédent.” The surviving spouse who received the usufruct of everything keeps it and pays the children an indemnity for the excess; payment by a forced heir is taken first by deduction, called moins prenant, against their own share. This turns most blended-family disputes into valuation fights: the value of a lifetime usufruct over the house, the date of valuation, and the size of the mass. An independent valuation, prepared at the opening of the succession rather than two years into a quarrel, is the single most cost-effective step either side can take.

Standing and time limits are strict. Article 921 of the Civil Code reserves the reduction claim to those for whom the law creates the réserve, their heirs and successors, and fixes the limitation period: “Le délai de prescription de l’action en réduction est fixé à cinq ans à compter de l’ouverture de la succession, ou à deux ans à compter du jour où les héritiers ont eu connaissance de l’atteinte portée à leur réserve, sans jamais pouvoir excéder dix ans à compter du décès.” In practice, a child living in Britain who discovers at a family meeting that the French house has passed entirely to a step-parent has five years from the death, or two years from learning of the infringement, capped at ten years. The same article obliges the notaire who spots a likely infringement to warn each known heir individually, before any division, of the right to seek reduction. A notaire’s silence at that stage is itself a serious failing that a lawyer can exploit.

Which court decides when the deceased lived in England and the widow lives there too? The answer matters because many British families assume the French house follows the English probate automatically. In Cass. 1st civ., 21 September 2022, no. 19-15.438, a French national habitually resident in the United Kingdom died leaving property in France, and his widow, herself domiciled in the United Kingdom, opposed the children’s request for a French succession administrator. The court of appeal had declared the French courts incompetent because the habitual residence was in England. The Cour de cassation quashed, recalling article 10(1)(a) of EU Succession Regulation no. 650/2012, as quoted by the Cour de cassation: “lorsque la résidence habituelle du défunt au moment du décès n’est pas située dans un État membre, les juridictions de l’État membre dans lequel sont situés des biens successoraux sont néanmoins compétentes pour statuer sur l’ensemble de la succession dans la mesure où le défunt possédait la nationalité de cet État membre au moment du décès.” Because the deceased was French and owned property in France, the French court had to raise its subsidiary jurisdiction of its own motion, following the Court of Justice ruling of 7 April 2022. For a British deceased the nationality route in that paragraph does not apply, but the principle stands: the French courts retain power over the French immovable part of the estate, and an English grant of probate alone does not settle who owns the house in the Dordogne. The practical route runs through the French notaire with the English probate, translated and apostilled, and where the notaire or a co-heir blocks the settlement, through a French court action in partage, the judicial division, combined if needed with the reduction claim.

If you are the surviving spouse and the children challenge the donation, the defences follow the structure of this article: prove the gift stays within the article 1094-1 ceiling, use cantonnement to shrink the dispute to the house, convert occupation rights into an annuity the children can price, and attack inflated valuations of the usufruct. If you are the child of the first marriage and the step-parent claims everything under an English will, the mirror strategy applies: demand the notaire’s individual warning under article 921, commission your own valuation, file the reduction claim within time, and where the estate spans both countries, insist that the French house is divided under French law before any English distribution treats it as already allocated. In both positions, the worst mistake is delay: occupation rights consolidate, properties are sold, and limitation periods run while families hope the problem resolves itself.

Conclusion

A second marriage does not erase the first family in the eyes of French succession law, and Brexit has not moved your French house into the English legal world. By default your second spouse takes one quarter in full ownership where a child of an earlier relationship exists, with no option for the usufruct of everything; a lifetime right to the family home cushions that outcome where the couple genuinely lived there; and a properly drafted gift between spouses can extend protection to the usufruct of the whole estate, subject always to the children’s reserved share and to the retranchement that caps matrimonial advantages for children of another bed. Each of these rules has a sharp edge and a remedy: cantonnement and conversion soften the gift, reduction in money rather than in kind softens the children’s claim, and the French courts remain competent over the French property even when the whole family lives across the Channel. The families who lose are the ones who rely on an English will alone, sign nothing before a French notaire, and discover the réserve only when the children instruct their own lawyer. Put the donation, the valuation method and the choice-of-law clause in writing now, while both households are still speaking, and the house in France can shelter your spouse without disinheriting your children.

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