Usufruct vs. Right of Habitation- What’s the Difference?
Because of the old laws of forced heirship, usufruct was a common appearance in wills. Typically a spouse would leave his portion of the property to the kids, subject to the usufruct of the surviving spouse. Since 1996, usufruct has become less common because we no longer have forced heirship except for children under 24 or disabled persons.
When a usufruct does appear in a more current will, it is sometimes problematic.
A better way to allow the non-owner spouse to have use of the deceased’s home is the right of habitation. This means he can live in the property but not sell it. It it is specifically personal, he cannot allow others to live there. If it has an extermination clause: like absent from the home for 60 consecutive days, he can’t move out and keep the right of habitation. This is unlike usufruct which allows the person with usufruct to rent the property and pocket the rent. It can also be tailored so that the right of habitation is as to the house and appropriate driveway or yard access only, leaving the rest of the property available to the underlying heirs.
A properly drafted will with a habitation clause can provide for the surviving spouse’s continued residence but at the same time keeping the rights of the underlying owners intact and manageable.
Please let us review your estate plan and answer any questions you may have concerning the difference between usufruct and habitation. Contact us for a free consultation!