Two reported rulings of 2017 concern how to measure what a spouse or an heir owes the others. In the first, a husband married under separation of property had received land by gift-partition in 1958, against an equalising payment (soulte, the sum paid to co-beneficiaries to balance the lots) of 26 000 francs paid to his siblings with the proceeds of a property jointly owned by his wife and her mother; at his death the court of appeal grants the wife a claim computed on the whole payment, updated by the current value of the property. The Cour de cassation (the French supreme court for civil matters), on 18 January 2017, quashed: “the subsisting profit had to be determined according to the proportion in which the funds contributed by the wife, excluding any contributed by her mother, had contributed to paying the equalising payment that enabled the allocation of the land”. In the second, a father had let his son use a Paris flat free of charge from 2000 to 2011; his widow and daughter asked for that advantage to be brought back to the estate. On 11 October 2017 the Court held that a loan for use “effects no transfer of a patrimonial right” to the borrower, “so that no impoverishment of the lender results”, and that it is “incompatible with the classification of an indirect advantage subject to rapport”. For the valuer, a rule of proportion and a boundary to know.
The facts
In the first case, a man married under separation of property dies on 2 July 2006, leaving his wife, their son and three children of a first marriage. By gift-partition of 12 February 1958 he had received land, subject to an equalising payment of 26 000 francs to his siblings, paid with funds from the sale of a property jointly owned by his wife and her mother. The court of appeal recognises a claim by the wife against the estate, valued by the following formula: amount of the payment, multiplied by the current value of the property in its condition at acquisition, divided by the value of the property acquired according to the gift-partition; it holds that using that sum to pay a personal debt made the husband a debtor to his wife “up to the profit he derived from it, regardless of the relations that may have existed between her and her mother as to the final division between them of the sale price of their building”.
In the second, a man dies leaving his wife and two children. The son sues his mother and sister for partition; they ask, in the alternative, for the rapport to the estate of the indirect advantage he enjoyed through the free provision, from August 2000 to April 2011, of a Paris flat belonging to the deceased. The Paris court of appeal, on 18 May 2016, rejects the claim: the arrangement was a loan for use, which involves no dispossession of the lender.
The decision
First ruling (Cass. 1re civ., 18 January 2017, no. 16-12.391, reported): under articles 1469, paragraph 3, 1543 and 1479, paragraph 2, of the Civil Code, quashed, “whereas the subsisting profit had to be determined according to the proportion in which the funds contributed by the wife, excluding any contributed by her mother, had contributed to paying the equalising payment that enabled the allocation of the land”. The quashing concerns the valuation formula of the claim; remitted.
Second ruling (Cass. 1re civ., 11 October 2017, no. 16-21.419, reported): “a loan for use is a gratuitous service contract which only confers on its beneficiary a right to use the thing lent but effects no transfer of a patrimonial right in their favour, in particular of ownership of the thing or its fruits and income, so that no impoverishment of the lender results”; having held that the provision of the flat was a loan for use, the court of appeal “rightly deduced that such a contract is incompatible with the classification of an indirect advantage subject to rapport”. Dismissed.
What this changes for valuation
Between spouses under separation of property, the claim is computed like matrimonial compensation. Where a spouse has funded, with their own money, the acquisition or preservation of the other’s property, their claim follows the subsisting profit rules: it cannot be less than the profit the property retains at liquidation, measured by the proportion in which the funds contributed to the acquisition. Here the equalising payment had enabled the allocation of the land; the claim is therefore the fraction of the current value of the land, in its 1958 condition, that the payment represents in its acquisition cost. The glossary entry récompense describes that computation, and the article on the capital contribution to the jointly owned home shows that such a contribution does create a claim and not a contribution to the expenses of the marriage.
Only the spouse’s funds count in the proportion. The proceeds of the sale of a property jointly owned by the wife and her mother were not, in full, the wife’s money; the court of appeal could not reason as if the husband had benefited from the whole sum at the expense of his wife alone. The subsisting profit is computed with, as numerator, the share of the payment actually funded by the wife’s money, which requires reconstructing the division of the sale price between her and her mother. A valuer establishing such a claim therefore asks for the deed of sale of the jointly owned property, the shares, and proof of payment; failing that, they present several proportion hypotheses, and the court decides. The article on separate property partly sold applies the same requirement of proportion to another situation, and the one on the equalising payment made by the community to the case of a bare ownership.
Three values, one of them from 1958. The computation requires the acquisition cost of the land in 1958, the value used in the gift-partition plus the equalising payment, the share of the payment funded by the wife, and the current value of the land in its 1958 condition, that is, without the buildings or improvements made since. The valuer values the bare land at the date closest to liquidation, from sales of comparable land, and documents the 1958 condition from the deed and plans of the time. The glossary entry soulte recalls what it represents in a gift-partition.
A loan for use does not impoverish the lender. An heir housed free of charge in a flat of the deceased has not necessarily received an indirect gift. If the arrangement is a loan for use, the deceased kept ownership and the fruits; they gave up a possible rent, but that lost income is not an impoverishment for the purposes of rapport. The classification depends on the facts: the article on free occupation granted by a usufructuary shows that in 2022 the Court admitted rapport where the provision had been granted “with an intention to gratify” and the property was in a condition to be let. Being later, that ruling sheds light on the 2017 one: a loan for use excludes rapport as long as the intention to gratify is not established; where it is, the advantage is measured by the rents not collected. A valuer instructed on a rapport claim therefore quantifies the rental value period by period, noting that the figure will serve only if the judge finds an intention to gratify.
Two separate accounts in one liquidation. The claim between spouses is settled before the partition of the estate, in the liquidation account of the matrimonial regime; the rapport of an advantage is settled in the partition between heirs. The expert report separates the two, with their valuation dates, as described in the guide Matrimonial property liquidation: setting the valuation date. The guide Inheritance: the house occupied by an heir deals with the second account.
What the valuer takes from it
- The claim of a spouse under separation of property who funded the equalising payment of a gift-partition is computed as subsisting profit, by the proportion of their funds in the acquisition cost of the property.
- Only the spouse’s own funds enter that proportion; those of a third party, however close, are excluded.
- The computation requires the original acquisition cost, the share actually funded and the current value of the property in its original condition.
- A loan for use transfers no patrimonial right and does not impoverish the lender; it is not an indirect advantage subject to rapport.
- Where an intention to gratify is established, rapport is measured by the rents not collected; the valuer quantifies the rental value subject to that reservation.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guides Matrimonial property liquidation: setting the valuation date and Inheritance: the house occupied by an heir and the glossary entries récompense, soulte and rapport des donations complement this article. On the same theme: Separation of property: paying for the home creates a claim and Housed free by the usufructuary: an advantage to bring back. The decisions are available on Légifrance: no. 16-12.391 and no. 16-21.419.
What next
A gift-partition equalising payment made with a spouse's funds, or a home lent free of charge to an heir, and a claim or a rapport to quantify?
I establish the proportion actually funded by the spouse, the value of the property at acquisition and at liquidation, and I separate the loan for use from the advantage to be brought back, for the liquidating notary or the court.
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