What Happens to Your Property When a Spouse Dies in Louisiana?

Understanding how Louisiana law affects what a surviving spouse and children inherit

Estate planning in Louisiana works differently from estate planning in most other states.

One of the biggest differences involves what happens when someone dies leaving both a spouse and children. It is easy to assume that you can simply leave everything to your spouse—or that your spouse automatically inherits everything if you do not have a will.

In Louisiana, neither is necessarily true.

Two concepts are particularly important: forced heirship, which can protect an inheritance for certain children, and usufruct, which can allow a surviving spouse to use property even when someone else ultimately owns it.

Understanding these rules can make the difference between an estate plan that accomplishes what you intended and one that produces a very different result.

Does your spouse automatically inherit everything in Louisiana?

Not necessarily.

Louisiana is a community property state, which means that spouses generally each own an interest in community property acquired during the marriage. When one spouse dies, the surviving spouse already owns his or her share of that community property.

The deceased spouse's share is a different matter.

Who receives that portion depends on several things, including whether there is a valid will, whether the deceased spouse had children or other descendants, whether any of those descendants qualify as forced heirs, and whether the property is community or separate property.

This is why a simple instruction such as “I want everything to go to my spouse” may require more planning in Louisiana than people expect.

What is a forced heir in Louisiana?

Louisiana is one of the few states that still has a concept known as forced heirship.

A forced heir is a child—or, in certain circumstances, another descendant—whom Louisiana law protects from being completely excluded from a parent's estate.

Generally, a child qualifies as a forced heir if, at the time of the parent's death, the child:

• Is 23 years old or younger (has not yet reached age 24); or

• Meets certain requirements involving a mental incapacity, physical infirmity, or qualifying inherited condition that affects or may affect the person's ability to care for themselves or manage their estate.

There are additional rules and exceptions, including situations involving descendants of a child who died before the parent.

This means that not every child is a forced heir. For example, a parent whose children are all healthy, independent adults will generally have considerably more freedom in deciding who receives the estate.

How much is a forced heir entitled to receive?

The portion Louisiana law reserves for forced heirs is called the legitime, or forced portion.

Generally:

• If there is one forced heir, the forced portion is one-fourth of the estate.

• If there are two or more forced heirs, the forced portion is generally one-half of the estate, divided among them.

The remaining portion is known as the disposable portion. Subject to other applicable rules, that is the portion a person can generally leave to a spouse, other children, a charity, or someone else.

Certain family situations can make this calculation more complicated.

Can you simply leave a forced heir out of your will?

Generally, no.

Simply omitting a forced heir from a will does not eliminate the inheritance rights Louisiana law gives that person.

Louisiana does allow a forced heir to be disinherited in certain circumstances, but the law provides specific grounds and requirements for doing so. A statement in a will that simply says a child should receive nothing is not necessarily sufficient.

If a will gives away more than Louisiana law permits while a forced heir is entitled to a protected share, the forced heir may have the right to challenge those gifts after the parent's death.

So how can you provide for your spouse?

This is where another uniquely important Louisiana estate-planning concept comes in: usufruct.

The word sounds complicated. The basic idea is easier.

A usufruct can give one person the right to use and benefit from property even though another person ultimately owns it.

The person with the usufruct is called the usufructuary. The person who holds the underlying ownership interest is called the naked owner.

For example, an estate plan might allow a surviving spouse to continue living in a home and benefiting from certain property while the children hold naked ownership. When the usufruct ends, the naked owners generally become full owners of the property that remains subject to the usufruct.

This can allow a Louisiana estate plan to accomplish two goals at once: provide for a surviving spouse while preserving an inheritance for children.

What happens if someone dies without a will?

Louisiana law provides default inheritance rules for people who die without a valid will.

If someone dies leaving a spouse and descendants, the surviving spouse generally receives a usufruct over the deceased spouse's share of community property, while the descendants inherit naked ownership of that share.

The surviving spouse already owns his or her own half of the community property.

Under the default rule, that legal usufruct generally ends when the surviving spouse dies or remarries.

Separate property is subject to different inheritance rules, which is another reason dying without a will may produce a result very different from what a family expected.

Can a will give a surviving spouse greater rights?

Yes.

A properly drafted Louisiana will can use what is known as a testamentary usufruct to provide more specific rights to a surviving spouse.

Depending on the circumstances, a will may address questions such as:

• Whether the usufruct lasts for the spouse's lifetime or ends earlier

• Whether remarriage affects it

• Whether it applies to separate property as well as community property

• What rights the surviving spouse has regarding particular assets

• Whether property for a young or incapacitated forced heir should instead be placed into an appropriately structured trust

These provisions can be especially important when a family owns a home, investments, a business, or other significant assets.

Why community property matters

A will can only dispose of property the deceased spouse actually owns.

For community property, that generally means the deceased spouse's interest—not the surviving spouse's existing interest.

Consider a married couple who owns a community-property home. When one spouse dies, the surviving spouse does not suddenly inherit the entire home from the deceased spouse. The surviving spouse already owned an interest in the home.

The deceased spouse's interest is what passes according to Louisiana succession law and the deceased spouse's estate plan.

When forced heirship is also involved, simply writing “I leave everything to my spouse” may not produce the result the person intended.

A properly structured estate plan can address these competing interests much more precisely.

Do you need a Louisiana will?

Having a will is particularly important when Louisiana's default rules do not match what you want to happen.

A Louisiana estate plan should consider questions such as:

• Do any of your children currently qualify as forced heirs?

• Who should receive your separate property?

• What should happen to your share of community property?

• Should your spouse have the right to use certain property for the rest of his or her life?

• Should that right end if the surviving spouse remarries?

• Do you want a young or incapacitated child's inheritance held in trust?

• Who should ultimately receive the family home?

• Are your retirement accounts, life insurance policies, and other beneficiary-designated assets coordinated with the rest of your estate plan?

These aren't merely technical distinctions. They can determine who can remain in a home, who receives income from property, who has authority over particular assets, and who ultimately owns them.

Louisiana estate planning is different

A will downloaded online or prepared for use in another state may not account for Louisiana's civil-law system.

Louisiana also has specific requirements governing how wills are executed. Even a carefully considered estate plan can create problems if the will itself does not satisfy Louisiana's formal requirements.

For families with children, blended families, business interests, significant separate property, or a potential forced heir, understanding these rules before preparing a will can be particularly important.

Planning an estate in Louisiana?

Weiler & Rees advises individuals and families on Louisiana estate planning, wills, trusts, successions, and related tax matters. A carefully structured estate plan can account for Louisiana's forced-heirship, usufruct, and community-property rules while reflecting how you actually want your property handled.

This article is provided for general informational purposes only and does not constitute legal advice. Louisiana estate-planning and succession rules depend on the facts of each family and the nature of the assets involved.

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