Louisiana is a civil law state, which means thar our laws are based on the French Napoleonic tradition. It also means that some of our laws are very different than the laws of every other state. This is especially true when it comes to estate planning. Louisiana's inheritance laws can impact LGBTQ+ families, blended families, and single people in different ways. Considering that, how do you protect your loved ones? By having a comprehensive estate plan. Here are the documents that help move you and your family from Louisiana's default rules to decisions that you've consciously made. Depending on your family, you may not necessarily need everything on this list, but you should consider whether each one is an important tool to protect you and your family.
- A valid Louisiana Last Will and Testament. The foundation of any Louisiana estate plan - a properly executed Last Will and Testament (your "Will") allows you to choose who inherits your property, rather than applying Louisiana's default laws that prefer blood relatives. Louisiana law requires certain formalities be followed for a valid Will, so relying on an online form Will may risk its validity.
- A revocable living trust (not a requirement, but useful for some). A revocable living trust (also called an "intervivos trust," "living trust," or "revocable trust") is another important estate planning tool. You may have read or heard something along the lines of "everyone needs a trust." Most likely, whoever said this was talking about a revocable living trust. A living trust can be an important part of certain families' estate planning - blended families, families who want more privacy, families who don't want their heirs to have to go through succession, or families who have minor children or who want to have more control over when or how their heirs receive their inheritance. These are all good reasons to consider a living trust. But the truth is everyone doesn't need a living trust. For many families, a properly executed and comprehensive Will is more than sufficient to meet their families' needs and goals.
- A durable financial power of attorney. If you have separate financial accounts, accounts in your name only, then you are the only person who can access those accounts. If you're incapacitated, your spouse can't access those accounts simply by virtue of the fact that you're married. For financial matters, your spouse (or whoever you'd want handling your financial affairs) must be named in a durable financial power of attorney as your agent. Without a power of attorney, no one will be able to access those accounts on your behalf while you're incapacitated.
- A healthcare power of attorney. When you're incapacitated, someone else may need to make medical decisions for you. If you're married, your spouse may be able speak with your physicians and make decisions, but what if you're parents, siblings, or other family members disagree with those decisions? This can create unnecessary stress and conflict in an already stressful situation. The easiest way to avoid this conflict is to have a healthcare power of attorney that designates the one person you want making medical decisions for you.
- A living will. Despite its name, a living will isn't a Will at all. Instead, this document works with your healthcare power of attorney so your loved ones can handle your affairs when you're incapacitated. If you don't want certain types of end-of-life care - such as a feeding tube, then you should make those wishes clear for your family. That way there is no question about what you prefer. That's the purpose of a living will.
- A HIPAA release. This is another important document that protects you while you're incapacitated. It gives the designated person (often the same person who has your healthcare power of attorney) the ability to access your medical records without having to having a court intervene.
- Up-to-date beneficiary designations. Certain types of accounts - life insurance, 401Ks, IRAs - transfer to the person or people you designate as your beneficiaries at your death. These accounts transfer outside of succession, so it's important to periodically review your beneficiary designations and make sure the people you want to inherit those accounts are named. This is a simple and easy way to make sure that these funds go to the person or people you want.
- A cremation affidavit. If you'd like to be cremated, Louisiana allows you to affirmatively state that in a cremation affidavit. Without a cremation affidavit, there is a chance that your wishes may not be honored.
- Confirming your legal relationship to your children. If you're raising children who are not biologically related to you, then you aren't legally related to the children and don't have legal rights as to the children. This is most often an issue for blended families or LGBTQ+ families. Marriage alone to the biological parent doesn't provide legal rights to the children. So, if you want to confirm you have a legal relationship to the children, you may need to consider second-parent or stepparent adoption, and you should consult with a family law attorney to learn your options.
- A tutor for your minor children. If you have minor children, you likely want to have some say in who raises the children and acts as their guardian when you're gone. Under Louisiana law, this guardian of minor children is called a tutor, and you have the power to name your choice of tutor for your minor children in case something happens to you. For LGBTQ+ families, this may be especially important because your choice of tutor may not necessarily be the person the law would otherwise select, and having a tutor properly designated in your estate plan can help to prevent or lessen disputes among family members.
- Documents that correctly reflect who you are. Perhaps you executed a Will years ago, but since then, you've remarried or divorced and changed your name. Or if you're transgender, perhaps you've changed your gender and your name. Or if you named an heir in your estate plan who has recently changed their name and/or gender. These are all examples of situations where it will be important to consider revising your estate plan. It is vital that estate planning documents accurately reflect a person's name and gender. Not only is it important so that you (or your heir) are accurately honored, but any discrepancy can cause questions during succession.
A quick note for married LGBTQ+ couples
Marriage gave LGBTQ+ couples some real protections under Louisiana law. However, marriage alone does not provide the protections of a complete estate plan. Relying on Louisiana's default law leaves gaps. We wrote another article on what marriage equality did and didn't fix for LGBTQ+ couples in Louisiana. If you have questions about these gaps, it's a quick read and worth your time. Marriage Equality and Estate Planning: What Obergefell Fixed – And What It Didn’t Fix for Louisiana LGBTQ+ Couples – Aspen Estate Planning, LLC
Planning doesn't have to be intimidating. It can start with a simple conversation.
You don’t have to handle everything on this list at the same time, and you don’t need to have all the answers before you get started. At Aspen Estate Planning, we strive to make the process feel like a conversation with a friend who happens to know the law, not a daunting task with a stranger.
If you’d like a place to start, download our free guide, The Modern Louisiana Family’s Guide to Estate Planning, or schedule a free initial consultation with us. We’ll walk through the checklist together and help you decide what your family actually needs.
Frequently asked questions
Do my partner and I need to be married for me to protect them with an estate plan?
No, you don't. You can name your unmarried partner in your Will, trust, power of attorneys, and/or beneficiary designations, etc. If you're not married and want to protect your partner, this is one of the strongest reasons to have a complete estate plan in place.
We’ve been together for years. Isn't that enough to protect my partner?
No. While some states may recognize a long-term relationship as a common-law marriage, Louisiana doesn't. Put simply, the only way to ensure your partner is protected is through an estate plan.
If I have a Will from another state, is it valid in Louisiana?
Possibly. That may not be the direct answer you'd hoped for, but unfortunately, it's hard to say without reviewing the Will. Because of Louisiana's unique laws, a Will that was valid under another state's laws may not comply with Louisiana's laws. The best way to evaluate your out-of-state Will is to consult with a Louisiana attorney.
Is there a document or two that everyone should start with in their estate plan?
The foundation of a good estate plan is a Will and financial and healthcare powers of attorney. With these documents, you can designate who inherits from you and who makes decisions for you. But every situation is unique, and you should consult with a Louisiana estate planning attorney to design a plan that works best for you and your family.
This article is general information about Louisiana law, not legal advice, and reading it doesn’t create an attorney-client relationship. Estate planning laws are complex and specific to individual circumstances. For guidance on your specific situation, please speak with a Louisiana estate planning attorney.
