Contrary to popular belief, marriage does not always provide the best protection. It all depends on matrimonial regime. Under the regime of the community reduced to acquisitionsapplied by default without a marriage contract, the property purchased during the union is presumed common, even if one of the spouses financed more. Only property acquired before marriage or with identified equity, such as an inheritance or donation, escape this rule.
The separation of property regime offers more individualized protection, but imposes great rigor. “The act of purchase must reflect exactly who paid for what,” underlines Maître Ricouvier, notary at the Marseille residence. Otherwise, the person who financed more can only assert a claim against their spouse. PACS also works on a principle of separation of property.
Devices to better secure the purchase
Cohabitation remains the most risky situation. Without specific legal protection, everyone remains the owner according to their share and can request the sale of the property at any time. In the event of death, the survivor has no automatic right to the accommodation and may have to vacate the premises for the benefit of the heirs. Added to this is heavy taxation: in the absence of marriage or PACS, inheritance taxes between cohabitees can reach 60%after a very limited reduction.
To limit these risks, several tools exist. The SCI makes it possible to organize the ownership of the property via social shares rather than traditional joint ownership. Well-written, the statutes can regulate resale, avoid certain blocking situations and facilitate transfer to the surviving spouse or children. It also offers more flexibility in a long-term heritage logic.
The tontine clause constitutes another protective solution. It is based on a simple principle: upon the death of one, the survivor is considered to have always been the sole owner. “The first to die allows the other to become full owner of the entire property”explains the notary. However, this mechanism remains difficult to call into question in the event of separation and must therefore be used with caution.
The will finally remains an essential tool, particularly for civil partners or cohabiting couples. It makes it possible to organize the transfer of usufruct or full ownership, while anticipating the tax consequences and the rights of heirs reservations. Without this anticipation, the spouse’s protection can quickly become insufficient.
For Arielle Ricouvier, the question of inheritance must always be addressed before buying together. “We need to know who inherits what, how, and according to whose wishes. Protecting your spouse means, above all, anticipating”she concludes.
