We all know Louisiana is different than the other 49 states. For those of us lucky enough to live here, it’s a special place to live that’s unique for many reasons, and one of those is its legal system. Based upon French civil law and not English common law, the civil law traditions rooted in Louisiana’s laws affect many facets of how property is transferred when a person dies. Forced heirship, community property, usufruct – you may not have heard of these terms, but you should know them because they are at the heart of what happens to your property when you die – and why a Will written in another state like Mississippi, Florida, or Texas may have problems in Louisiana.
The other 49 states in the US based their legal system, including their inheritance laws, on the common law traditions of England. On the other hand, Louisiana looked back to its roots as a French colony, and Louisiana based its legal system on the French civil law and Roman legal traditions. Codified in the Louisiana Civil Code, Louisiana not only uses different legal terms than other states, but it also follows unique legal concepts. For estate planning, the unique concepts that matter most are:
If your estate plan doesn’t account for these concepts, it can create a headache for your heirs when you’re gone and consequences that you didn’t foresee or intend.
Forced heirship laws require that a portion of your property go to your children (or in some cases your grandchildren) as “forced heirs” when you pass away. Even if you leave your forced heirs out of your estate plan – whether intentionally or mistakenly - Louisiana law will step in and provide a share of your estate to your forced heirs. Forced heirship can’t be ignored. Except in extraordinary circumstances, such as trying to kill the person making the will, both the Louisiana Constitution (La. Const. art. XII, § 5) and Civil Code (La. Civ. Code arts. 1493 et. seq.) are written specifically to protect forced heirs from disinheritance.
Louisiana Civil Code article 1493 defines a forced heir as a child who is either:
Typically, grandchildren are not forced heirs under Louisiana law, but there are exceptions. If your child predeceased you, and your child had a forced heir because of permanent incapacity, then this grandchild is also your forced heir. If your child predeceased you, would have been 23 years old or younger at the time of your death, and also had a child, then your grandchild is also your forced heir.
Louisiana law guarantees that your forced heir receive a minimum amount of your property, called the forced portion or the “legitime.” The amount that is guaranteed depends upon how many forced heirs you have. Louisiana Civil Code article 1495 provides that:
Any property left after the forced portion is the disposable portion of your estate, which you are legally able to leave to anyone you choose. You can leave the forced portion in a trust for your forced heir, and you can also leave your surviving spouse a usufruct over the forced portion. But unless your situation meets one of the limited exceptions found in Louisiana Civil Code article 1621 (such as your child attempting to kill you), you cannot disinherit a forced heir.
Why does all this matter? If you previously lived in another state and drafted your Will while living there, then it’s likely your Will doesn’t account for your forced heir. Common law states usually allow you to leave your property to whomever you choose. Forced heirship isn’t a legal concept that any of the other 49 states recognize.
If you’ve moved to Louisiana and have an out-of-state estate plan, or if you don’t have an estate plan, you should consult with a Louisiana estate planning attorney to find out whether there are any red flags for you and your family.
Louisiana isn’t the only community property state in the US, but it’s a very small club. Our state is one of nine states that follow community property laws. What does that mean?
If you live in Louisiana (or one of the other eight community property states) and are married, most of the property that you acquire during your marriage is automatically owned by you and your spouse in equal portions – one-half to each spouse. La. Civ. Code arts. 2334, et seq. Regardless of whether your name is the only one on the title or the account, if you acquired it during your marriage, your spouse owns one-half of it. The exceptions to community property include anything you owned before you married and anything you inherit or receive as a donation while you’re married; this is your separate property. You can also execute a separate property agreement, but that’s the subject for another blog post.
Why is this so important? You can only give to your heirs what you own. Consequently, all you can give is your one-half interest in the community property and your separate property in your estate plan. You don’t have any control over your spouse’s one-half interest in the community property.
If you have more questions about community vs. separate property, read our companion article on Community Property vs. Separate Property: Why Is It So Important for Your Louisiana Estate Plan? – Aspen Estate Planning, LLC.
Usufruct is another one of those unique Louisiana legal concepts. A usufruct splits the right to use and enjoy property (possibly including its income) and the right to own the property into two different interests – a usufructuary who uses the property and a naked owner who owns the property. Once the usufruct ends, the naked owner receives the complete ownership interest in the property. In common law states, a similar idea is called a “life estate.”
Louisiana residents most often encounter a usufruct when a spouse passes away, but you can grant a usufruct to someone else while you’re alive. Under Louisiana Civil Code article 890, if you die without a Will, your children will inherit your one-half of the community property, but your surviving spouse will inherit a usufruct over it. How does this work in real life?
A usufruct can be an important estate planning tool for certain families, especially blended families where one or both spouses were previously married. A usufruct can ensure that your surviving spouse gets to live in your home as long as they’re alive, but it also ensures that your children (even your children from a prior marriage) will ultimately inherit the full ownership of the home.
But a word of caution for blended families – when a stepparent receives a usufruct over community property (such as a home) and stepchildren are naked owners of the property, this can result in a lot of stress and conflict for your family after you’re gone. That’s why it’s worth intentionally planning and not relying on Louisiana’s default inheritance rules. With real planning, you can try to minimize the chance of conflict between your loved ones.
Here’s a hypothetical to illustrate why all this matters. In our hypothetical, Joe and Mary moved to Mandeville, Louisiana, from Gulfport, Mississippi immediately after they married 10 years ago. It was the second marriage for both Joe and Mary, and they both have children from prior marriages.
They both have Wills that were drafted in Mississippi, and they never got around to updating their Wills after they moved to Louisiana. Since moving to Mandeville, they’ve bought a house, cars, and other household items, and Joe opened a savings account. Joe also owns a stamp collection that he inherited from his father. Joe passes away unexpectedly, and his Will states that all his property passes to his children from his prior marriage. What happens to Joe’s property?
Joe’s family opens his succession, and his family may be in for a few surprises. Joe’s separate property may go to his children from his prior marriage, including the stamp collection and anything he acquired before he married Mary and moved to Louisiana. But what about the community property – the house and everything else that Joe and Mary bought after moving to Louisiana? Even though his Will doesn’t mention community property, the judge applies Louisiana’s community property laws and finds that everything they acquired after they moved to Louisiana is community property, including Joe’s savings account. So, Joe’s Will only transfers his one-half interest in the community property; Mary owns the other one-half interest outright. Mary receives a usufruct over Joe’s one-half interest in the community property, including their home, but his children from his prior marriage receive the naked ownership of his one-half interest. The result? His wife and children end up arguing over a home, savings account, and other property that none of them completely control.
How do you prevent this from happening? You make a Louisiana-specific estate plan that considers your family’s dynamics. By working with a Louisiana attorney, you design an estate plan that purposefully considers who will inherit from you and when, as well as the disputes that may arise. By doing this, you can minimize the chances of family conflict after you’re gone.
If you reside in Louisiana, our unique laws can’t be ignored, but you can build a plan that works with the laws to protect you and your family. Forced heirship, community property, usufruct – these must all be considered when you decide who will inherit from you. An estate plan from another state, or even an online form Will, likely fails to account for Louisiana’s unique laws, which can mean unintended consequences for your family when you pass away.
Consult with a Louisiana estate planning attorney today to make sure that your family is protected. At Aspen Estate Planning, our goal is to be your trusted advisor and help you design an estate plan in a stress-free process. Because something this important should be convenient for everyone. Contact us today to schedule your free initial consultation.
Is Louisiana the only state with forced heirship?
Yes. Louisiana’s laws are unique and come from the French civil law tradition, and the other 49 states follow the common law. Forced heirship is a legal concept only found in civil law, so Louisiana is the only state to use forced heirship laws.
Can I disinherit my children in Louisiana?
You have the legal right to disinherit your adult children over the age of 23 who are not permanently incapacitated. If your children are 23 years of age or younger, or if they have a permanent mental or physical incapacity, you cannot disinherit them because they are forced heirs. Louisiana law guarantees that forced heirs receive a certain portion of your property when you die, depending on how many forced heirs you have. There are a few exceptions to this law outlined in La. Civ. Code art. 1621, but these exceptions fit a limited set of circumstances.
Does my spouse automatically inherit everything in Louisiana?
No. Based upon Louisiana’s community property laws, your spouse owns one-half of your community property outright. When you pass away, your spouse typically inherits a usufruct over your one-half interest in the community property while your children inherit the naked ownership interest in it.
Will my out-of-state will or trust work in Louisiana?
It may, but while it may be legally valid, it may not work the same way you intended. Wills or trusts drafted under common law often leave out forced heirship considerations, fail to acknowledge community property, and omit a usufruct. As a result, an out-of-state Will or trust may not work in Louisiana the same way you intended when it was drafted. We highly recommend that you have a Louisiana attorney review your out-of-state Will or trust to determine whether there are any concerns under Louisiana law.
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