The donation of a real estate share between spouses remains one of the most poorly calibrated notarial acts in practice. The matrimonial regime, the status of the property (separate or communal), and the timing of the signing radically alter the tax bill and the residual rights of the donor. Here, we detail the technical points that general guides overlook.
Donation between spouses and mortgage: the trap of joint liability
Transferring one’s share of a house does not release the donor from their banking commitment. The joint liability between co-borrowers survives the donation: the bank retains its recourse against both signatories of the loan, even if one of them is no longer the owner.
To obtain a release from joint liability, explicit agreement from the lending institution is required. This usually requires that the remaining spouse demonstrates sufficient repayment capacity on their own. In the absence of a release, the donor remains liable for the entire outstanding capital.
We recommend negotiating the release from joint liability before signing the donation deed. A notary who processes the donation without securing this point exposes their client to a lasting financial risk. The process of giving one’s share of the house to their spouse thus requires close coordination between the notary and the bank, rather than just a simple drafting of the deed.
Matrimonial regime and nature of the property: qualify before giving
The qualification of the property conditions the very feasibility of the donation. Under the regime of community property, a property acquired during the marriage belongs to both spouses equally. Donating one’s share then amounts to transferring half of a communal property, which alters the composition of the community.
In a separation of property, the situation seems simpler: each spouse owns what they have financed. The donation concerns a separate property, without impacting a non-existent communal pool.
The case of the separate property reused
A property acquired with personal funds prior to marriage, under the community regime, remains separate provided that a reuse clause is included in the acquisition deed. Without this mention, the property defaults to community property, and the donation no longer concerns a separate property but a share of communal property. This distinction changes the taxable base and the rights of reserved heirs.
Taxation of real estate donation between spouses: allowances and false calculations
The allowance applicable to donations between spouses applies to the value transferred. Beyond this allowance, a progressive scale of donation rights applies. Contrary to popular belief, the primary residence does not benefit from any specific allowance in the case of a living donation. The 20% reduction sometimes mentioned applies exclusively to inheritance transmission, under conditions of occupancy.
This point is crucial: a couple anticipating the transfer of the family home through donation rather than inheritance pays more rights on the value of the property. We observe that this misjudgment regularly leads spouses to trigger immediate taxation when the inheritance would have been exempt for the surviving spouse.
Exempt inheritance versus taxed donation
The surviving spouse is completely exempt from inheritance tax, regardless of the value transmitted. A living donation, on the other hand, generates rights as soon as the value exceeds the applicable allowance. The calculation deserves to be clearly stated:
- In the event of death, the surviving spouse receives their share without any inheritance tax, even on a substantial real estate estate.
- In the case of a living donation, the rights apply beyond the allowance, according to the progressive scale of donations between spouses.
- Severance (donation of bare ownership with retention of usufruct) reduces the taxable base but does not eliminate taxation.
The donation between spouses is justified in specific configurations, for example when the donor wishes to transfer full ownership immediately for patrimonial or family reasons. In other cases, the inheritance protection of the surviving spouse is often sufficient to achieve the intended goal.
Donation and joint ownership: anticipate the occupation of the housing
Giving a share creates or modifies a situation of joint ownership. If the donation only concerns a fraction of the property, both spouses find themselves as joint owners, with the associated constraints: any decision to sell requires the agreement of both parties, and the exclusive occupation of the housing by one of the joint owners may generate a occupancy indemnity owed to the other.
In the event of subsequent separation, this joint ownership becomes a source of litigation. The occupying joint owner must pay an indemnity to the other, unless a contrary agreement is signed before a notary. This mechanism, rarely anticipated at the time of donation, significantly increases the real cost of the operation.
Exiting joint ownership after donation
There are three options to exit joint ownership:
- The purchase of the remaining share by the donee spouse, which requires a new notarial act and the payment of a sharing fee.
- The sale of the property to a third party, with the distribution of the price according to the respective shares.
- The judicial partition, in case of persistent disagreement, with intervention from the court and associated procedural costs.
We advise drafting a joint ownership agreement concurrent with the donation deed, establishing the rules of occupation, charges, and exit. Without this document, each party’s rights rely solely on legal provisions, which are often insufficient to prevent conflicts.
PACS and real estate donation: a regime distinct from marriage
The PACS partner is not a legal heir in the absence of a will. This fundamental difference from marriage drives some PACS couples to resort to donation to secure the transmission of the housing. The donation between PACS partners remains subject to donation rights after allowance, unlike inheritance which is exempt.
The paradox is the same as for married spouses: transmitting by living donation costs more than allowing inheritance to take place, provided a will has been drawn up in favor of the partner. The donation is only justified if the immediate transfer of ownership meets a real need (protection against reserved heirs, resale project, patrimonial reorganization).
The transfer of a share of a house between spouses or partners remains a significant act, where the timing, matrimonial regime, and banking situation weigh as heavily as the parties’ intentions. A poorly calibrated notarial act can cost several tens of thousands of euros more than a classic inheritance strategy. It is better to conduct a complete patrimonial diagnosis before signing anything.
