Can a large age gap invalidate a tontine agreement in France?
Tontine clauses are inserted at time of property purchase but can be invalidated at a later date
Signing a tontine clause does not necessarily stop a challenge
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Reader Question: My wife and I have had a tontine agreement on our main house in France since purchasing it in 2003. The notaire has now said it is not valid because the age gap between my wife and myself is 19 years. We have been married for 32 years. Is this correct?
‘A Tontine’ clause is a option in France that allows a couple to jointly own a property, with the full ownership going to the survivor upon their spouse’s death as if it had always belonged to them.
When one co-owner dies, the survivor is then deemed to have been the owner from the beginning.
This can be used as part of future planning for the protection of the spouse, for example against claims of children, especially where there are children from previous marriages.
When any two people buy a property, the notaire can insert a tontine clause in the purchase deed if the buyers ask for it, but it cannot be added in after the property purchase.
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Validity of tontine clause
However, to avoid the validity of the clause being challenged on one person’s death, there should have been an element of uncertainty as to who would die first.
To this end, there should not be a great age difference between the people concerned and one person should not be suffering from a very serious health condition that gives them a limited life expectancy.
Another condition is an element of financial risk for both parties (the ‘risk’ being of making a significant investment but perhaps never being sole owner of the property). So, another condition is that both should have contributed a substantial amount of funds to purchase the house.
If these conditions are not met, the agreement could be challenged in the future by any disappointed would-be heirs (eg. step-children).
There is no precise age gap that is permissible, but previous case law has suggested that 25 years is ‘too much’ or 15 in a case where there were also significant health disparities.
In this case, the notaire has evidently judged that an age difference of 19 years is enough to put the validity of the agreement in doubt so he or she was likely pointing this out if you are relying on it for your future plans.
