Surviving spouse and blocked inheritance: what rights and what recourse?

When a married person dies, their spouse benefits from significant inheritance rights. They can receive a share of the estate in full ownership or usufruct, retain the use of the family home, and be completely exempt from inheritance tax.

This protection, however, does not shield the spouse from practical difficulties. A child's opposition, an heir's inaction, a disagreement over the sale of the property, or a co-owner's lack of response can delay the settlement of the estate for several years.

Law No. 2026-248 of April 7, 2026, designed to simplify the process of ending joint ownership and managing unclaimed estates, has created new legal avenues. In particular, it allows, under certain conditions, a co-owner to obtain judicial authorization to sell jointly owned property alone.

But can this reform really help the surviving spouse? It all depends on the rights they receive and the structure of the estate.

What are the inheritance rights of the surviving spouse?

The rights of the spouse depend first and foremost on the composition of the family.

In the presence of only children of the same family

When all the deceased's children are from the couple, the surviving spouse can choose between:

• the usufruct of all the assets comprising the estate;
• a quarter of the inheritance in full ownership.

This choice must be made taking into account the age of the spouse, their financial needs, the nature of their assets, the presence of a home, and the relationships they maintain with their children.

The usufruct of the entire property allows, in particular, the spouse to continue occupying the property or to collect the rent. However, it implies long-term management in conjunction with the children, who become the bare owners.

The quarter in full ownership ensures the spouse definitive ownership of part of the estate, but generally places them in joint ownership with the children on the inherited assets.

In the presence of at least one non-common child

When the deceased leaves one or more children from a previous marriage, the spouse in principle receives one-quarter of the estate in full ownership.

He does not have the legal option of usufruct of the entire estate. However, his rights may have been increased by a gift between spouses or by a will, within the limits of the special spousal disposable portion.

Blended families are frequently exposed to blockages: disagreement over the sale of the home, contesting a donation, discussion over the value of assets or refusal of an heir to participate in the division operations.

In the absence of descendants

If the deceased leaves no children, the rights of the spouse depend in particular on the presence of the deceased's father or mother:

• In the presence of both parents, the spouse receives half of the inheritance;
• if only one parent is alive, he/she receives three-quarters of the proceeds;
• If both parents are deceased, he in principle inherits the entire estate.

In this latter case, certain assets received by the deceased from his ancestors may nevertheless be subject to a right of return for the benefit of his brothers and sisters or their descendants.

In the absence of descendants, the surviving spouse is also a forced heir entitled to one-quarter of the estate.

Can the surviving spouse remain in the family home?

Regardless of their share of the inheritance, the spouse benefits from specific rights over the dwelling constituting their main residence.

The temporary right to housing

During the year following the death, the spouse may, under legal conditions, occupy the family home free of charge and use the furniture that furnishes it.

This right is a matter of public policy: the deceased cannot deprive their spouse of it by will.

When the property was rented, the rent payments can be reimbursed by the estate during that period.

The life interest in habitation

The spouse may also benefit from a right of habitation on the dwelling until their own death, as well as a right of use on the furniture.

This right must be claimed within one year of the death. It can be waived by the deceased, but only through a valid will.

Contrary to popular belief, its value is not automatically added to the surviving spouse's inheritance rights; it is deducted from them. However, if it exceeds their amount, the surviving spouse is not required to compensate the estate for the excess, in accordance with Article 765 of the Civil Code.

These rights protect the occupancy of the dwelling, but they do not resolve all the difficulties relating to its management, maintenance or sale.

Is the spouse still in joint ownership with the other heirs?

It is essential to distinguish between joint ownership and the division of ownership rights.

Joint ownership in the case of rights of the same nature

Joint ownership exists when several heirs hold rights of the same nature over the same property.

For example, if the spouse receives one quarter of the inheritance in full ownership and the children the remaining three quarters, they may find themselves as joint owners of the family home.

The spouse and children must then comply with the rules for managing jointly owned property:

• A co-owner can carry out alone the acts necessary for the preservation of the property;
• Administrative acts generally require two-thirds of the undivided rights;
• Disposals of property, including the sale of real estate, generally remain subject to unanimity, subject to the exceptions provided by law.

A division of ownership in the case of usufruct and bare ownership

When the surviving spouse receives the usufruct of the estate and the children receive the bare ownership, they are not, by that fact alone, in joint ownership. They have rights of a different nature.

This distinction is crucial: the procedures for ending joint ownership cannot be automatically transposed to a situation of dismemberment.

The sale of full ownership of the property therefore generally requires the agreement of both the usufructuary and the bare owners. Any disagreement must be addressed according to the rules specific to usufruct, and not solely those governing joint ownership.

How can an inheritance become blocked?

There are many causes of blockage:

• an heir refuses to sell a property;
• an heir is no longer responding to the notary;
• the heirs dispute the valuation of the property or business;
• one of them occupies the property alone and opposes the division;
• the spouse wishes to keep the accommodation, but cannot finance the equalization payment;
• No agreement has been reached on the distribution of the sale price;
• a donation, a will or a life insurance policy is being contested.

During this period, however, expenses continue to accrue: property tax, maintenance, insurance, loan repayments, and condominium fees. Assets can deteriorate, and family tensions can worsen.

The inheritance protection of the spouse does not therefore necessarily give him/her the power to decide alone.

What changes with the law of April 7, 2026

The law of April 7, 2026, notably strengthened the powers of the president of the judicial court in the presence of a blocked joint ownership.

A co-owner may now be authorized to conclude the sale of jointly owned property alone when two conditions are met:

• an emergency situation;
• the common interest of the co-owners.

This measure complements the tools that already allowed the judge to intervene when the refusal of a co-owner jeopardized the common interest or when the co-owners holding at least two-thirds of the rights wished to sell an undivided property.

The reform aims to prevent inheritance proceedings from remaining stalled solely due to the inaction or opposition of an heir. It is presented by the administration in its summary of the new rules for resolving inheritance disputes.

An authorization that remains subject to the judge's approval

The reform does not allow the spouse to freely sell property against the wishes of the other heirs.

He must demonstrate:

• the existence of a genuine emergency;
• the conformity of the sale to the common interest;
• the impossibility or, at the very least, the difficulty of reaching a collective decision;
• the relevance of the proposed sales conditions.

The urgency could, for example, result from the rapid deterioration of the property, from charges that have become unbearable, from a risk of seizure or from the need to settle an inheritance debt.

The spouse's mere desire to quickly obtain their share should not be sufficient.

A reform that does not apply to all situations

This new arrangement assumes the existence of joint ownership. Therefore, it is not necessarily a suitable solution when the spouse holds the usufruct of the property and the children its bare ownership.

Before initiating any proceedings, it is necessary to determine precisely:

• the rights acquired by each heir;
• the property that is actually held in joint ownership;
• the spouse's potential separate rights to the accommodation;
• the provisions of the marriage contract, the gift between spouses or the will;
• the precise reasons for the blockage.

What recourse is available to a spouse facing a blocked inheritance?

Depending on the circumstances, several solutions can be considered.

To seek an agreement organizing joint ownership

A joint ownership agreement can set out the rules for managing the assets, appoint a manager, allocate expenses and provide for the conditions of occupancy or sale of the assets.

This solution can be useful when immediate sharing is not desired, but the operation of the joint ownership must be secure.

Request preferential allocation of housing

Under certain conditions, the spouse may request that the family home and its furnishings be allocated to them during the division of assets.

However, he will need to be able to pay compensation if the value of the property exceeds his inheritance rights. An agreement on payment terms or appropriate estate planning may then be necessary.

Request judicial authorization

When urgency and common interest justify it, the jointly owned spouse may request the president of the judicial court to authorize him to carry out certain acts alone, in particular, since the reform, the sale of jointly owned property.

Other mechanisms can be used when the refusal of an heir jeopardizes the common interest or when the co-owners wishing to sell hold at least two-thirds of the rights.

Request judicial partition

In the absence of an amicable agreement, any co-owner may request partition through legal proceedings. The principle remains that no one can be forced to remain in joint ownership indefinitely.

The court may appoint a notary to handle the liquidation and division of assets. If the assets cannot be easily distributed, their sale may become necessary.

This procedure must nevertheless be prepared carefully: disagreements relating to accounts between heirs, donations, occupancy compensation or the value of assets can considerably lengthen it.

How to prevent blockages?

Protecting the spouse is not limited to the amount of the inheritance they will receive. It also involves anticipating the conditions under which assets can be managed after death.

Several instruments can be combined:

• the choice or arrangement of the matrimonial property regime;
• a donation between spouses;
• a will;
• a clause of preferential share;
• a life insurance policy with an adapted beneficiary clause;
• the organisation of the transfer of shares in a company;
• a discussion on the financing of a possible equalization payment.

In a blended family, this planning is particularly important. Increasing the spouse's rights without planning the concrete arrangements for management or exit can simply shift the problem rather than solve it.

Key takeaways

The surviving spouse has inheritance rights and specific rights regarding their home. However, they do not always have the power to sell or divide the estate's assets on their own.

The law of April 7, 2026 provides a new instrument when a true joint ownership is paralyzed: a co-owner can ask the judge for authorization to conclude the sale of a property alone when urgency and common interest require it.

However, its application requires correctly identifying the legal situation. Joint ownership between owners should not be confused with a division of ownership between usufructuary and bare owners.

Examining the matrimonial regime, the rights of each heir and the nature of the blockage therefore remains essential before choosing between negotiation, preferential allocation, judicial authorization or judicial division.

If you are facing an inheritance issue as a surviving spouse, our personal law department can assist you, contact us.

Article written by Olivier Paquereau and Morgan Jamet