Life interest right to housing of the surviving spouse: how to request it?

Published on March 18, 2019

Real estate / construction

The life interest right to housing of the surviving spouse is a right that allows the surviving spouse to remain in the residence they shared with the deceased, for the duration of their entire life (Article 764 of the Civil Code). An innovation of the law of December 3, 2001, this right reflects the legislator's intention to strengthen the rights of the person who has lost their spouse.

A right of which the spouse may be deprived

Unlike the one-year right to housing, the deceased may have chosen to deprive their spouse of their life interest right to housing, in which case they must express their wish before two notaries or one notary and two witnesses.

A right that must be asserted

The Civil Code teaches us that "the spouse has one year from the date of death to express their intention to benefit from these rights of habitation and use." It was therefore necessary to understand that the surviving spouse must clearly express their intention, even if the form of this expression is not indicated by the text (option in a notarial deed, registered letter to the other heirs…).

A right that could be tacitly invoked

In a recent decision of February 13, 2019, the Court of Cassation overturned a ruling of the Versailles Court of Appeal which had refused to grant a widow her lifetime right to housing because she had not expressed her wish to benefit from her right within the one-year legal deadline provided for by the text.

This decision is therefore clearly part of a desire by the judges to favor the surviving spouse, to the detriment of the application of the rule of law since, in this case, the surviving spouse had in no way expressed their intention to benefit from this right within the one-year period from the date of death.

The case will therefore continue before the Paris Court of Appeal.

Our advice

Rather than risk losing their lifetime right to housing, it is better to make their decision known to the other heirs, quickly after the death, and in any case within 12 months of the death.