Dependence is often considered from a human or medical perspective. However, it also constitutes a major heritage issue. In France, the remaining cost in nursing homes frequently exceeds 2,000 euros per monthor even more depending on the establishment. When the parent’s retirement, savings or assets are no longer sufficient, family solidarity takes over. Children can then be legally required to contribute to the costs, even before public aid kicks in.
This solidarity does not end with death. Certain benefits paid by departments or social organizations can be recovered on the inheritance and thus reduce the inheritance transmitted to descendants. “We often mix two different mechanisms: family solidarity, which is based on the maintenance obligation, and national solidarity, when the department advances certain aid which it can then recover from the deceased’s assets”explains Maître Véronique Dejean de la Bâtie, notary.
Maintenance obligation: in which cases must children pay for a dependent parent?
Children cannot systematically refuse to finance their parents’ dependency. THE articles 205 to 211 of the Civil Code establish a reciprocal maintenance obligation between ascendants and descendants. Thus, when a parent finds themselves in a state of need and can no longer assume the costs linked to their dependency alone, their children can be asked to supplement the financing.
This obligation is distinct from the maintenance obligation that exists towards minor children or young adults. “The obligation to maintain does not imply a state of need. The maintenance obligation presupposes precisely that the person can no longer meet their expenses alone. »recalls Maître Dejean de la Bâtie. This situation most often arises when entering a nursing home. If the resident’s income, assets and assistance are no longer sufficient to pay the accommodation costs, the establishment or department may ask the children to participate.
“Most of the time, these obligations are fulfilled spontaneously. All it takes is for a nursing home to indicate that the debt is not paid for the children to intervene. In the vast majority of situations, it is not even necessary to refer the matter to a judge.”observes the notary. The maintenance obligation does not only concern children. Under thearticle 206 of the Civil Code, sons-in-law and daughters-in-law are also required to do so as long as the marriage with their spouse subsists. On the other hand, this obligation disappears in principle in the event of divorce or after the death of the spouse from whom this alliance bond arises.
How is the participation of each child calculated?
The bill is not automatically split equally between siblings. Contribution is appreciated depending on each person’s resources and expenses. Judges take into account income, assets, family situation and even dependents. “Participation is proportional to the assets of the children and that of the person to be protected”summarizes Maître Véronique Dejean de la Bâtie. Consequently, a child with a comfortable income may be required to contribute more than a brother or sister with more modest resources.
Inheritance: what aid can be recovered from inheritance?
This is probably the least known aspect of addiction. If certain public aid is definitively acquired, others can be recovered after the death of the beneficiary, thereby reducing the assets transmitted to the heirs. The distinction is essential. Personalized autonomy allowance (APA), intended to finance part of the expenses linked to loss of autonomy, is not recoverable from the estate. The amounts paid by the department therefore do not have to be reimbursed by the heirs.
On the other hand, the situation is different with social assistance for accommodation (ASH), which can be granted when an elderly person does not have sufficient resources to pay for their stay in a nursing home. Provided for by the Code of Social Action and Families, this aid constitutes an advance granted by the community. The department can therefore exercise inheritance appeal in order to recover all or part of the sums paid. “The department’s social assistance is recoverable. Social assistance for accommodation is also included. On the other hand, the APA does not give rise to any recovery »recalls Maître Véronique Dejean de la Bâtie. Before sharing the inheritance, the notary questions the various organizations likely to have paid recoverable aid. If a claim exists, it is settled from the estate assets before any distribution between the heirs.
The unpleasant surprise that can happen several months after the death
In practice, this recovery is not always known immediately. Response times from administrations can sometimes considerably delay the final settlement of an estate. “In all estates, we question the departments and organizations concerned. But sometimes they respond very late. We happened to discover more than six months after the death that assistance was recoverable, even though the inheritance had already been settled”argues the notary.
She even mentions particularly delicate situations. “The heirs had sold the property and shared the price. More than a year later, they had to put in place a schedule to repay the amounts claimed. It was very uncomfortable. » This situation illustrates the importance of waiting until all possible claims are identified before definitively distributing the estate assets.
Can we protect our assets before losing our autonomy?
Faced with the increasing cost of dependency, many retirees are wondering about the means to preserve the transmission of their assets. For Maître Véronique Dejean de la Bâtie, the most frequent error consists of waiting until the loss of autonomy occurs before starting to think. “ Families should anticipate dependency by planning today the decisions that will have to be made if one day they are no longer capable of making them themselves”she believes.
The notary recommends in particular taking advantage of property transactions (donation between spouses, will or future protection mandate) to organize certain decisions in advance. “ Predicting your own incapacity is very difficult psychologically. Preparing your succession is just as important. However, anticipating these two situations makes it possible to avoid many difficulties for loved ones”she emphasizes.
It is not only a question of optimizing the transmission of assets, but also of facilitating decisions when a loss of autonomy occurs, without systematically having to resort to the protection litigation judge. In certain cases, the future protection mandate can also be an effective tool. Planned by the articles 477 et seq. of the Civil Codeit allows you to designate in advance the person who will be responsible for managing your interests if you become unable to do so yourself.
In what cases can a child be exempted from paying?
The maintenance obligation is not absolute. The Civil Code provides for an important exception, often unknown to families. L’section 207 provides that the judge can relieve a child of his obligation when the parent has himself seriously failed to fulfill its obligations towards him. This may include abandonment during childhood, violence, lack of maintenance or a lasting absence of relationships attributable to the parent.
Case law has regularly applied this text. In a judgment of March 31, 2021, the Court of Cassation confirmed that judges could exonerate a child when the parent’s failings were sufficiently serious. Other decisions have also exempted children who grew up without any material or emotional support from their parents. In 2015, the Amiens Court of Appeal thus exempted two daughters from any maintenance obligation towards their mother, due to the latter’s serious breaches of her parental duties.
