A man inherits the bare ownership of a house, his mother keeping the usufruct. He dies before her, leaving a wife and children. The wife opts for the usufruct of all the assets, as article 757 of the French Civil Code allows. Does she have a usufruct over that house, of which her husband was only bare owner, once the mother’s usufruct ends? The First Civil Chamber of the Cour de cassation (the French supreme court for civil matters), asked for an opinion by the Commercial Chamber in a tax dispute, answered yes on 20 May 2026: the option creates a second usufruct, taking effect at the end of the first. For valuation, this adds a layer to the split of ownership, and a question of method.
The question
The dispute was between heirs and the tax authority, before the Commercial Chamber, over the inheritance duties owed by the children. The Commercial Chamber sought the opinion of the First Civil Chamber, which handles succession law, on whether, “in the absence of any act of will by the deceased”, the surviving spouse enjoys, over an asset of which the deceased was bare owner, a usufruct to be exercised on the extinction of the first usufruct.
The opinion
The First Civil Chamber is of the opinion “that where an estate includes an asset encumbered by a usufruct, the option for the usufruct of all existing assets exercised by the surviving spouse under article 757 of the Civil Code creates in the spouse’s favour a second usufruct over that asset, which will take effect on the cessation of the first” (Cass. 1re civ., opinion, 20 May 2026, no. 25-11.757, translated from the French).
The reasoning has three steps. A usufruct may be created by law (article 579). The bare owner “has a vocation to the full ownership” of the asset, so that he may give or bequeath a usufruct to a third party although not yet holding that right, the second usufructuary’s enjoyment beginning only at the end of the first (article 617, and case law of 1978 and 1995). Lastly, article 757 makes the spouse’s usufruct bear “on all the assets existing” at the death, “without distinguishing according to whether the deceased held full ownership or bare ownership”. Assets of which the deceased was bare owner are therefore existing assets, and the spouse receives over them, from the opening of the estate, “a usufruct of statutory origin whose exercise is deferred to the day the current usufruct is extinguished”.
What this changes for the valuation
Three rights over one asset. At the death, the house bears the mother’s current usufruct, the surviving spouse’s deferred usufruct, and the bare ownership the children receive. What the children receive is worth less than the bare ownership of an asset encumbered by a single usufruct: they will have full ownership only after two deaths, that of the current usufructuary and then that of their mother or stepmother. The valuation must take this into account, or it overstates what is transferred.
The tax scale and its limits. For inheritance duties, article 669 of the French General Tax Code fixes the value of usufruct and bare ownership by age bands of the usufructuary, in 10% steps. It is designed for a single usufruct. Where usufructs are successive, the tax rule assesses the duties on the current usufruct, and article 1965 B of the same Code provides that, when the contingent usufruct opens, the bare owner is entitled to a refund of the amount they would have paid less had the duty been calculated on the age of the contingent usufructuary. The refund therefore applies only where the second usufructuary is younger than the first, and only to a bare owner who paid the duties themselves. A valuation report on an estate of this kind does well to present both calculations, that of the day and that of the opening of the second usufruct, so the heirs know what they will be able to claim.
Economic value for a partition or a sale. Outside tax, for a partition, a sale of bare ownership or a liquidation, the scale is not binding. The usufruct is then measured by the net income the property produces, capitalised over the probable duration of the usufruct from mortality tables, and the bare ownership by the value of the full ownership discounted to the probable date the rights reunite. A deferred usufruct is valued by the same method, allowing for the probability that the second usufructuary outlives the first and for the waiting period; its value is often small, but it is not nil, and it reduces the bare ownership by as much. The Charte de l’expertise en évaluation immobilière (the French property valuation charter) refers, for split rights, to these income and duration based methods (6th edition, November 2025, Title III, ch. 2, § 2.2).
A will or a gift between spouses changes the picture. The opinion applies only “in the absence of any act of will by the deceased”. A will, a gift to the surviving spouse or a clause in the deed splitting ownership may provide otherwise, a reversion of usufruct or an exclusion; the notaire (French civil-law notary) reads them before the expert calculates.
What the expert takes from it
- A surviving spouse who opts for the usufruct of all assets receives a deferred usufruct over assets the deceased held in bare ownership.
- The children receive a bare ownership encumbered by two successive usufructs; its value is below that of an ordinary bare ownership.
- For tax, the scale of article 669 applies to the current usufruct, with a refund provided for when the second opens.
- For a partition or a sale, the economic value, by income and probable duration, replaces the scale and allows for the deferred usufruct.
- The report presents the full ownership, then each right, with the usufructuaries’ ages and the valuation date.
Further reading
The Market value page describes the assignment, its timescale and its fee. The glossary entries usufruit, nue-propriété and démembrement, and the guide Lifetime gift partition: valuing the lots between children, complement this article. On the same theme: Usufruct of SCI shares: discount, life annuity and uncertainty and SCI shares and wealth tax: the two discounts. The opinion is available on Légifrance.
What next
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