Family-Home Protection and Surviving Spouse's Right of Choice: France vs Spain (2026)

Introduction

French law (Code Civil) and Spanish law share a similar starting point: a default community of acquisitions regime (*communauté légale* in France, *sociedad de gananciales* in Spain). Yet when it comes to post-mortem rights of the spouse, France stands out with flexibility and housing protection that ordinary Spanish civil law simply lacks.

1. Shielding the family home

Staying in the home is the chief financial concern of any widow(er). The Spanish Civil Code (common law) contains no mandatory free-of-charge rule guaranteeing use of the deceased's privately owned home. If the home was *ganancial* (common), the survivor has a preferential allocation right (art. 1406.4º CCE) — but must compensate any excess value over their liquidation share.

French law tackles this head-on: art. 763 CCF grants the survivor a mandatory one-year right to occupy and use the family home and its furniture, of public order, derived from marriage (not succession), so the deceased cannot deprive the survivor of it. If the home was rented, the rents of that first year are reimbursed by the estate.

After that year, the French survivor may exercise a lifetime habitation right on the home and furniture (art. 764 CCF). It is successoral and is charged against their share, but it guarantees a roof.

In Spain similar protections exist only in foral law — e.g. Catalonia's "*any de viduïtat*" (arts. 231-31 CCC).

2. Choice in intestate succession

Another big divergence: succession flexibility.

In ordinary Spanish law the survivor's share is rigidly fixed as a usufruct (over the *tercio de mejora* with children). They cannot demand full ownership unless heirs agree to commute (art. 839 CCE).

France gives the survivor decisional power. With common children, art. 757 CCF allows the survivor to choose between:

• usufruct over the whole estate, or
• full ownership of one quarter.