An heir applies for the preferential allocation (attribution préférentielle, the right of a co-heir to be allotted a particular asset against an equalising payment) of the estate’s wine property, which he proposes to take at 309 149 €. The court orders an expert appraisal, endorses the report valuing the property at 739 000 €, and grants the allocation with everyone’s agreement. The allottee appeals and renounces: at that price, he no longer wants the property. His co-heirs invoke article 834 of the Civil Code, which allows renunciation only if the value of the property “has increased by more than a quarter at the date of partition”. The Cour de cassation (the French supreme court for civil matters), on 29 May 2019, in a reported decision, dismissed their appeal: the allocation judgment being subject to a general appeal, it had no force of res judicata, and the allottee “could renounce it, even if the conditions laid down by that provision were not met”. For the valuer, the ruling highlights two dates, allocation and partition, and the one-quarter threshold that links them.
The facts
A man dies, leaving his wife, two children and two grandchildren coming by representation. One of the children sues the co-heirs to obtain an expert appraisal of the estate and the preferential allocation of the wine property it includes. By judgment of 6 November 2014, the court orders the liquidation and partition, endorses the report of the expert appointed by the pre-trial judge, and grants the preferential allocation, having noted the unanimous agreement of the heirs.
The allottee lodges a general appeal and renounces the allocation, arguing that he had applied for it only subject to a value of 309 149.20 €, whereas the court retained 739 000 €. The Bordeaux court of appeal, on 24 April 2018, holds him free to renounce, no final decision having been made on the allocation. The co-heirs appeal to the Cour de cassation.
The decision
The first civil chamber dismissed the appeal (Cass. 1re civ., 29 May 2019, no. 18-18.823, reported). “Under article 834 of the Civil Code, the beneficiary of the preferential allocation becomes exclusive owner of the allocated property only at the date of the final partition and, until that date, may renounce it where the value of the property, as determined at the date of that allocation, has increased by more than a quarter at the date of partition independently of their own doing.”
“Having noted that the judgment, which had granted Mr Z. A.’s application for preferential allocation, was subject to a general appeal, so that it had no force of res judicata, the court of appeal rightly deduced that the beneficiary could renounce it, even if the conditions laid down by that provision were not met.”
What this changes for valuation
Two dates, one threshold. Article 834 compares the value of the property at the date of allocation with its value at the date of partition: if the second exceeds the first by more than a quarter, not through the allottee’s doing, they may renounce. The rule protects the heir who asked for a property at a certain price and finds themselves facing an equalising payment now out of reach. A valuer instructed in a partition with preferential allocation therefore supplies both values, with their dates, and computes the gap as a percentage; that figure says whether renunciation is open. The glossary describes the attribution préférentielle and the soulte.
As long as nothing is final, renunciation is free. The ruling adds a procedural rule that matters: the allocation is acquired only with the final partition, and a judgment under general appeal has no force of res judicata. Until then, the allottee may withdraw without having to prove the one-quarter increase. An heir who discovers, on reading the appraisal, that the property is worth more than double what they thought is therefore not locked into their claim. For the valuer, this means that a valuation delivered before the allocation becomes final may change the parties’ positions; the report is all the more useful for coming early.
The equalising payment follows the value at partition. The article on the soulte due at partition recalls that the equalising payment is computed on the value of the property at the date of partition, and is due only then. The gap between allocation and partition, which opens renunciation, is also what increases the payment; both questions are handled with the same figures. An allottee who does not renounce pays the equalising payment on the current value, increase included.
A wine estate is valued with its constraints. The property was burdened by a farm lease, as the pleadings mention. The article on the farm let to the heir’s company shows that the allocation is made at the let value when the lease binds the allottee. The 739 000 € retained here therefore had to reflect the occupancy status, the quality of the vines, the planting rights and the buildings; the gap with the 309 149 € proposed no doubt lay in those items. A report detailed by component lets the parties discuss the gap rather than the total.
Renouncing is not contesting the appraisal. The allottee did not get the value reduced; he obtained the right not to take the property at that value. The property then returns to the ordinary partition, or to a court auction if it cannot be divided in kind, as explained in the article on the court auction ordered only failing division in kind. The guide on the standard court mission for a partition describes the process.
What the valuer takes from it
- The allottee becomes owner only at the final partition; before then, they may renounce if the value of the property rose by more than a quarter between allocation and partition, not through their own doing.
- As long as the allocation judgment is under appeal, renunciation is free, with no condition of increase.
- The report gives the value at the date of allocation and at the date closest to the partition, and the gap as a percentage.
- The equalising payment is computed on the value at the date of partition; the gap that opens renunciation is also the one that increases it.
- A let farm is allocated at its let value, detailed by component.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Standard court mission: market value for a partition and the glossary entries attribution préférentielle, soulte and licitation complement this article. On the same theme: Preferential allocation: the soulte is due only at partition and Preferential allocation: the farm let to one’s company stays let. The decision is available on Légifrance.
What next
A farm or a home to be allocated by preference, and a value that changed between the claim and the partition?
I establish the value of the property at the date of allocation and at the date closest to the partition, with the gap between the two, so that the allottee and the co-heirs know whether the equalising payment is sustainable or whether renunciation is open.
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