Can I divide my property among my children by gift without one child's consent?

Answer by the AvoConsulte editorial team

Tunisian law has no "donation-partage" of the kind French law provides. In Tunisia each gift is a separate contract between the giver and the recipient: you cannot give anything to your child without that child accepting it, but you can make gifts to your other two children without the third one being present or agreeing.

The gift rules in the Personal Status Code

• A gift is a contract by which one person transfers ownership of property to another free of charge (article 200), so the recipient must accept it.
• It is only complete once the property is handed over, and it is void if either party dies before then (article 201).
• It must be made by official deed; for registered land, the rights only arise once entered in the land register (article 204).
• A gift made during the giver's last illness is treated as a bequest (article 206).

If you want your third child to receive a share, that child must accept it, possibly through a representative. No one can be made to accept a gift they refuse.

Must you treat your children equally?

The chapter on gifts does not expressly require equality between children, but a gift that leaves one out can lead to a dispute when your estate is divided. See a lawyer before you act.

Alternatives to know about

• Allocation to heirs: article 180 lets a person allocate specific assets during their lifetime to all or some of their heirs, within their inheritance shares, taking effect at death; anything above that follows the rules on wills. This is the closest thing to what you have in mind; ask a notary which form it requires.
• A will: a bequest to an heir, or above one third, only takes effect if the heirs consent after the death (article 179).
• Revocation: a gift can only be revoked in specific cases, such as serious ingratitude or a child born after the gift (article 210), so do not give away what you may need.

This answer was written by the AvoConsulte editorial team and gives general information only: it is not legal advice. For your own situation, consult a lawyer.

Sources

1. Code du statut personnel – Des donations, dispositions générales (art. 200) Jurisite Tunisie
2. Code du statut personnel – De la donation (art. 201 à 206) Jurisite Tunisie
3. Code du statut personnel – Du testateur (art. 178 à 180) Jurisite Tunisie
4. Code du statut personnel – De la révocation de la donation (art. 209 à 213) Jurisite Tunisie