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Many & LoCoco Legal Blog

Tuesday, September 22, 2015

THE LAW OF FORCED HEIRSHIP IN LOUISIANA

Yes, it is true. Louisiana is the only state in the union that has forced heirship as a law. In estate planning, the concept of forced heirship is the one thing that most clients do not understand. So, I decided to write this article in an attempt to explain it in layman’s terms.

I. WHAT IS IT?

The simple explanation of the law of forced heirship is the requirement that a portion of a person’s estate must be left to his or her children, of a certain age, who under law are known as forced heirs.

II. WHAT ARE THE SOURCES OF THE LAW OF FORCED HEIRSHIP? 

Forced heirship is an ancient civilian concept. It was derived from Roman law, ultimately with influences from German, Spanish and French law. Roman law originally held that the father was the head and master of the family, and therefore, he could leave his estate to whomever he desired. Preservation of the property was most important. Eventually, Roman law developed the idea that the family needed to be protected. Thus, laws were developed that insured a child would inherit the property of the father. By the time the Roman Republic was coming to an end, the idea arose that a child could claim a legitimate portion, or legitime. Emperor Justinian provided for the amount of the legitime, as well as grounds for disherinson of a child.  So, over the course of time, Roman law had gone from protecting the property as the priority to instead protecting the family.The concept of forced heirship than was modified over many years with influences by German tribal laws when they conquered Rome, Spanish law and French Law.

III. HOW DID IT END UP IN LOUISIANA? 

Before the State of Louisiana was founded, the citizens here lived under French Law. After the Louisiana Purchase, President Jefferson strongly desired that our laws be assimilated into the English common Law of the rest of the United States. The citizens of Louisiana rejected President Jefferson’s wishes, and continued to follow the French Civil Code. This of course only goes to show that we have always been a little different down here. The first Louisiana Civil Code Digest was written in 1808. It was written completely in French, showing the strong French influence during this state’s infancy. Of course, within those pages was the law of Forced Heirship, which is still the law of Louisiana, but it has undergone changes over the years.

IV. WHO ARE FORCED HEIRS?

Originally, every child was considered to be a forced heir. That law, over the years, has been changed and amended many times and now the law, as stated in Louisiana Civil Code Article 1493, has defined forced heirs as those descendants of the decedent who at the time of the decedent’s death are twenty three (23) years of age or younger or who of any age, because of a mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.

V.      WHAT DO YOU NEED TO LEAVE TO YOUR FORCED HEIR? 

The law spells out the portion of your estate that must be left to your forced heir. This is called the legitime or “forced portion”. If you die, leaving one forced heir, the “forced portion” is one-quarter (1/4) of your estate. If you die with two or more children, then the “forced portion” is one-half (1/2) of your estate, which must be split among the forced heirs. Simply put, other than for specific grounds of disinherison recognized by law, if you leave a forced heir, he or she will receive a portion of your estate when you die.

VI. THE IMPORTANCE OF ESTATE PLANNING WITH FORCED HEIRS

Proper estate planning is imperative when you have a forced heir. Since we know a forced heir has to get a portion of the estate, an estate planning agenda can be developed to perhaps leave the forced portion to your child in trust, so that they cannot access the funds themselves, with said funds being controlled by a Trustee whom you appoint in your will. Additionally, that forced portion could also be subject to a usufruct to your spouse, whereby your spouse has full use of the property during her lifetime. The forced heir merely has what is called the “naked ownership” of his or her forced portion. This is allowed under Louisiana Law. Also, in blended family situations, forced heirship can get quite complicated, when both parents have forced heirs, but the children are from other spouses.

Estate planning is an attempt, with an attorney, to take your own personal situation and tailor make a plan to make your dreams and desires legal. That is the importance of a well-thought out estate plan and the use of a Last Will and Testament. This article is a very brief discussion of forced heirship. Please call us today if you would like more information or if you would like to set up a meeting to begin your own estate planning agenda.

 

 CHIP LoCOCO

ATTORNEY AT LAW

NEW ORLEANS, LA

www.neworleansestatelaw.com


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The Attorneys of Many & LoCoco assist clients throughout parts of Southern Louisiana, including but not limited to New Orleans, Metairie, Mandeville, Convington, Gretna, Arabi, Marrero, Westwego, Harvey, Chalmette, Kenner, and the Parishes of Orleans, Jefferson, St. Tammany, and St. Bernard, LA.



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