What is the status of the spouse in the company?

Does your spouse regularly participate in the family business? Please do not make him/ her work without status.

Indeed, if you have not formalized his situation, he/she will be considered to be your employee. A more favourable situation for him/her, but much more costly for the company.

Do not wait for this regime to apply automatically. Choose the most appropriate status yourself with full knowledge of the facts.

Collaborating spouse, salaried spouse or partner spouse? It is always up to the manager to choose the status of his spouse who is regularly working in the family business. But, be careful, if he fails to pronounce and declare a status, the law is now clear since the PACTE law of 22 May 2019: the spouse will be deemed to have been declared as an employee.

1- The collaborating spouse: Le conjoint collaborateur

Only those who are married or in an agreement (PACS) with the company manager, who are regularly working in the company (those who work part-time or more as employees outside the company or are self-employed, are presumed not to fulfil this condition), do not receive remuneration for this and are not partners in the company may be recognised as collaborating spouses.

This status is intended for the spouses (or partners) of sole proprietors (craftsmen, traders, self-employed professionals). It is also open to the spouse of a sole or majority managing partner of a limited liability company (SARL) with less than 20 employees (this threshold will be abolished on 1 January 2020).

The company manager must declare his collaborating spouse via the CFE on which he depends. For the trader, this option will be mentioned in the RCS (register de commerce et des sociétés).

 Representative of the company manager The collaborating spouse can do all day-to-day management acts concerning the company on behalf of the company manager: sign purchase orders and estimates, make regular sales, and maintain relations with the authorities.

 Limited liability In relations with third parties, acts of management and administration undertaken for the needs of the company by the collaborating spouse shall be deemed to have been carried out on behalf of the head of the company and shall not entail any personal obligation on the part of the spouse.

In other words, in his capacity as the entrepreneur's agent, the spouse cannot be put into receivership and the company's creditors cannot seize its own assets.

 What social protection? As the company manager's beneficiary, the collaborating spouse automatically receives benefits in kind sickness and maternity (health care, medicines, hospitalisation, etc.).

Under certain conditions, the wife receives maternity benefits in the form of the flat-rate maternal rest allowance and the daily allowance for interruption of activity. A replacement allowance may also be paid if a person is hired. On the other hand, in the event of unemployment, the spouse has no right except by taking out personal insurance. The same is true for accidents at work, unless you have joined the voluntary insurance scheme provided for in the social security system.

 Training rights. The collaborating spouse is entitled to continued professional training. A contribution of at least 0.34% of the PASS is payable for the commercial collaborating spouse (unless the latter is a micro-entrepreneur because it is included in the amount of social security contributions).

The craftsman (artisant) does not have to pay an increased contribution for his/her collaborating spouse. The company can receive assistance to replace its spouse in training. The Personal Training Account (CPF) is open to self-employed workers and their collaborating spouses.

2- The salaried spouse: conjoint salarié

This status is very protective legally and socially for the spouse, but has a significant cost for the company.

 A subordinate To qualify for the status of employee, the spouse must not only participate, on a regular basis, in the activity of the company but must above all work under the authority of the managing spouse.

He/she must therefore leave his prerogatives as a spouse in the cloakroom and not take part in the management in such a manner that he/she has real decision-making power. In return for his work, he must receive a salary at least equal to the minimum wage.

 No liability: Subject to limiting himself to his rights as an employee, the spouse's liability cannot be sought in the context of a "bankruptcy" of the company.

 Good social security coverage. The spouse has the same rights as an ordinary employee: reimbursed care, daily sickness, maternal rest and the corresponding allowances, a pension in the event of disability and an old-age pension. In return for this broad social security coverage, he has to pay often high contributions, as does the company that has to pay the employer's contributions.

The employed spouse is also entitled to unemployment insurance. In practice, however, given the risks of contestation linked to the reality of the subordination link, it is better to ask the Pôle Emploi for its agreement before contributing; this will commit the organisation for the future.

3- The associated spouse

 To become a partner It is sufficient for the spouse of the entrepreneur to hold shares in the company (acquired at the time of creation or during the course of the company's life) either by making a personal contribution on his own property or by claiming the status of partner because his spouse, the entrepreneur, acquired the shares by making a contribution of common property (except in SA and SAS).

 Contributions in industry: Apport en industrie A solution for the spouse who has no money to invest, but who wants to become a partner anyway: make an industrial contribution, i.e. make available to the company his technical or professional knowledge, experience and relationships; in return, the industrial contributor becomes a partner and can thus share the company's profits (during the company's life) and the net assets (on the company's liquidation) to be charged to contribute to the losses. Attention, these contributions are non-transferable.

 Powers The partner spouse may or may not participate in the activity. But, in this capacity, he/she has a right to vote at meetings. He/she can also be appointed as a manager (impossible in a EURL or SASU), he/she will then hold management powers.

 No remuneration The partner spouse is not remunerated, he/she is only entitled to a share of profits (dividends). However, he/she may receive a salary if he/she is also an employee or a paid officer.

 Limited liability The partner spouse is only liable for the amount of his or her contribution. However, his liability is extended if he is co-manager: as a manager, he may be required to bear part of the company's debts in the event of judicial liquidation.

 Two social security schemes. The partner's social security coverage depends on his or her commitment to the company and its structure. As soon as he/she holds shares in the company and is regularly employed in the company, the spouse is considered as a partner spouse, whether remunerated or not. The partner spouse of a company director who is affiliated to social security for the self-employed (for example, a majority manager of a SARL) is him/herself personally affiliated on a compulsory basis to social security for the self-employed if he/she is a full participant in the company's activity and does not fall within the general scheme.

In this case, he/she has the same obligations and benefits from the same rights as the head of the company for his social security coverage. To be noted. If he is self-employed, he is affiliated to the social security system for self-employed persons for sickness and maternity insurance and to the CNAVPL for basic and supplementary pensions as well as for invalidity and death.

On the other hand, the partner spouse must be affiliated to the general social security system when he or she is also an employee minority manager or if he or she meets the conditions of salaried employment (subordination link). In this case, he shall receive the benefits in kind and in cash under this scheme.

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