Donation to the last living spouse

The donation to the last living spouse is a formal, notarized agreement that ensures the surviving spouse has certain rights in the inheritance. This arrangement only becomes effective after the donor's death and is designed to protect the surviving spouse, allowing them to maintain and manage the family home and receive part of the estate or income from it.

Rights of the surviving spouse in selling the home

The surviving spouse may not always have full authority to sell the family home. Their ability to sell depends on the legal rights they hold in the inheritance. If they have full ownership, they can sell freely, but if they only have the usufruct, they need the approval of the bare owners, typically the deceased's children.

Role of the notary in the sale

A notary is essential in verifying the legal rights of each party involved in the sale. They check succession documents and ensure all legal requirements are met. The sale price is divided according to each party's rights, and the surviving spouse is exempt from inheritance taxes, though a taxable gain may arise from the sale.

Division of proceeds in a split ownership

In cases where the surviving spouse has the usufruct and the children hold the bare ownership, the sale proceeds are divided based on the value of their respective rights. For instance, a 300,000 euro sale would give the usufructuary 30% and the bare owners 70%. This division is based on a tax scale, though it can be adjusted if the parties agree on a different valuation.

Division in undivided property

When the property is undivided, each heir receives a share of the sale price based on their ownership percentage. However, consensus among all owners is usually needed for the sale. Under specific conditions, those holding at least two-thirds of the rights can request a court-ordered sale.

Pre-sale legal checks

Before selling the home, a visit to the notary is required to review key elements like the marital regime, donation act, and each party’s legal rights. The notary uses documents such as the notoriety act and property titles to confirm the legal status of the inheritance and the property.

Recommendations for a smooth sale

To prevent conflicts, it is important to have open communication and clearly understand the rights of each party. The donation to the surviving spouse is a form of protection but does not automatically grant full ownership. Ensuring all legal agreements are in place before proceeding with the sale is crucial.