A granddaughter receives from her grandparents the bare ownership (nue-propriété) of a building, subject to caring for them. When the estate is partitioned, she asks for that obligation to be deducted from the value added back to the mass used to compute the reserve (réserve héréditaire, the share of the estate French law guarantees to certain heirs, chiefly the children). In a reported decision of 11 October 2017, the First Civil Chamber of the Cour de cassation (French supreme court for civil and commercial matters) sets the rule: only the net benefit (émolument net) of the gift enters the mass, and the charge is measured by the loss of earnings or the expenses it caused the donee. It follows, for the valuer, that the charge forms a separate item, quantified from documents.
The facts
A widow died leaving two children. With her predeceased husband, she had made several gifts to her children and to two granddaughters. One of them received, by deed of 29 August 1997, the bare ownership of a building at Le Grau-du-Roi, subject to caring for the donors and giving them the necessary assistance. The son sued his sister and his nieces for the liquidation and partition of his mother’s estate, and for the reduction (réduction des libéralités, the abatement of gifts that encroach on the reserve) of the gifts exceeding the freely disposable portion (quotité disponible).
On 2 June 2016 the Nîmes Court of Appeal rejected the granddaughter’s claim in respect of the care obligation. It found that the donee was employed by her grandparents, then by her grandmother, to manage the letting of furnished flats, and was housed in the residence for that job. It noted that she performed her care obligation during her working time, without it exceeding occasional help, the grandparents having the assistance of nurses and domestic staff, and that she neither proved nor even explained what costs that obligation may have generated.
The donee appealed: in her view, the care obligation corresponded to the time devoted to the donor and had to be valued as such, and her presence with her grandparents went beyond her working hours, including at night.
The decision
The First Civil Chamber dismissed the appeal (Cass. 1re civ., 11 October 2017, appeal no. 16-21.692, reported). It set out the rule: “where a gift carries, in the donor’s favour, a care obligation, only the net benefit procured by the gift must be included in the mass for computing the reserve, the amount of the charge being determined by reference to the loss of earnings or the expenses that its performance generated for the donee” (translated from the French). Texts applied: article 922 of the French Civil Code, which governs the mass for computing the reserve, and article 455 of the Code of Civil Procedure.
On these findings, the Court of Appeal “could deduce that the care obligation gave rise to no deduction in computing the reserve” (translated from the French).
The principle favours the donee: the charge is subtracted from the value added back to the mass. But the Court does not adopt the measure put forward by the appeal, the time devoted to the donor; it adopts what performing the charge cost the donee. The words “could deduce” show that the absence of deduction here rests on the lower courts’ assessment of the facts, which the Court approves without making it a general rule.
What this changes for valuation
Two terms, two sources. The net benefit is the value of the gifted asset, less the charge. The first term follows the notional reunion under article 922 of the Civil Code, which adds the gifted assets, for the computation only, to those left at death: the condition of the asset at the date of the gift, its value at death, established by comparison with sales dated at the death, as recalled in the article on gifted land valued as bare land. As the building had been given in bare ownership, the report states which right it values and at what date, a question the decision did not have to settle. The charge is not expressed as a discount on the property: it is quantified separately, from documents, then subtracted.
The charge is measured from the donee’s side. A donee who cut back their work to care for the donor relies on the income lost, backed by payslips and tax notices; one who paid for home help, transport or supplies produces the invoices. The market value of the service rendered to the donor is not, in itself, the criterion adopted. In the case decided, the donee gave only occasional help, during working time already paid for by the donors, and had neither proved nor even explained any cost: the Court of Appeal could refuse any deduction. The valuer therefore gathers the deed, the donee’s employment situation over the period and the evidence of expenses; where documents are lacking, the report says so, the assessment being for the judge.
Money charge, care obligation. In a reported decision of 16 November 2022, the Court held, for the rapport (bringing a gift back into account between heirs) of a gift subject to paying a sum of money, that the charge is deducted at its amount on the day it was performed, without revaluation at the date of partition; the article on the gift with a charge and rapport limited to the net benefit sets this out. Both decisions use the same notion of net benefit, for two distinct operations: rapport, which restores equality between heirs, and reduction, which protects the reserve. The more recent 2022 decision does not depart from the 2017 one: it settles a different question. The 2017 decision is silent on the date at which the cost of a care obligation is assessed; the report therefore dates each amount.
The rest of the computation. The disposable portion is computed on the mass so formed (article 922 of the Civil Code), then each gift is imputed; in practice, a proven charge reduces the part of the gift that is imputed. If a gift made outside the heir’s share (libéralité préciputaire) still exceeds the disposable portion, the reduction indemnity equals the excessive fraction, a rule laid down by another 2017 decision discussed in the article on the excessive fraction of the gift. The donee’s work also counts, on a different footing, for the fruits to be returned, as explained in the article on the fruits, less the donee’s own work.
What the valuer takes from it
- A gift with a care obligation enters the mass for computing the reserve only at its net benefit: the value of the gifted asset, less the charge.
- The charge is measured by the loss of earnings or the expenses its performance generated for the donee, not by putting a value on the time spent.
- Occasional help given during working time paid for by the donors, with no cost proven, could give rise to no deduction.
- The report values the asset in its condition at the gift and at its value at death, then presents the charge separately, with dated supporting documents.
- The decision says nothing about the date at which the cost of the care obligation is assessed: the report dates each amount.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Lifetime gift-partition: valuing the lots between children and the glossary entries réserve héréditaire, quotité disponible and réduction des libéralités complement this article. The decision given the same year on the amount of the indemnity: Reduction indemnity equals the excessive fraction of the gift. On the same theme: Gift with a charge: rapport covers only the net benefit and Reduction: the fruits to return, less the donee’s own work. The decision is available on Légifrance.
What next
A property received subject to caring for the donor, and a reserve to compute between heirs?
I value the gifted property in its condition at the date of the gift and at its value at death, and I present the claimed charge separately, with its supporting documents and their dates, so that the notaire or the court can compute the net benefit added back to the estate.
Free quote, by email or by phone. No commitment before the quote is accepted. Fees are never linked to the value of the property (Charte de l’expertise, Title I, §2.1).
