PACS & Usufruit

PACS & Usufruit

Question

I own a house in France where my partner and I have lived for 16 years. We are both aged 76. I have two sons in England to whom I intend to leave my house when I die. I am now planning to downsize and buy a new house here in France. If I should die first, I would like to enable my partner to continue living in the house for as long as he wants even though ownership will pass to my two sons. I thought a usufruct would be the way to go, but now I learn that my partner would have to pay 60% tax upon my death for the privilege of staying in the house. Would a PACS avoid the tax requirement? What does PACS mean and what benefits/obligations would it provide?

Answer

A PACS (Pacte civil de solidarité) is a form of civil partnership agreement.

Whereas currently in the UK a Civil Partnership can only be between same sex couples, a French PACS partnership can be between same sex or different sex couples. However, non-French nationals must be resident in France before they can become PACS partners.

You and your partner are resident in France so you are entitled to become PACS partners.

A PACS does not create an entitlement for the surviving partner to inherit on the death of the first of you however it does give you the same tax treatment as a married couple and would therefore ensure that any asset passing to the surviving partner on death would be free from inheritance tax in France.

Given that ultimately you wish your two sons to inherit your French property, you could indeed become PACS partners and you could then make a French Will giving your partner a life interest (usufruit) which will entitle him to remain in the house for the rest of his life. Your sons will inherit what is known as the bare interest (la nue-propriété) which is legal title subject only to the life interest.

Unless your partner was to predecease you, on your death your partner will be exempt from paying any inheritance tax and on his subsequent death, his life interest is extinguished and your sons will own the property outright in equal shares.

I would also mention the following points:

A bequest on death to a PACS partner must not impinge on the reserved entitlement of any children of the deceased partner. As you have 2 sons, they are each entitled to 1/3 of your estate. You can therefore leave to your PACS partner by a Will, the remaining 1/3 of your estate absolutely or a life interest in the whole of your estate. In order to ensure your partner receives the life interest over the whole property your Will must specifically include a reference to article 917 of the Civil Code. You should discuss this with your notaire.

A PACS couple is assessed jointly for income tax purposes – just as a married couple.

Since 1 November 2017 it has become possible to put in place a PACS either at your local Mairie or with your local Notaire. Previously, the PACS had to be issued and registered at the local court office or with a local Notaire.

This article first appeared in The Connexion – Legal Notes – May 2017.