Let me give you a scenario that keeps coming up in my practice that people must be aware of and easily can rectify.
Husband and wife get married. It’s the second marriage for both. They both have children from other marriages, whom they really do not get along well with, and all the children live away.
Husband comes into the marriage owning the home that the couple is going to live in as the family home.
Thus – under Louisiana law, the property is considered the separate property of the husband. It’s separate because he came into the marriage owning that property.
During the course of the marriage, he does not transfer any interest in the home to his spouse, which he could have done by an Act of Donation, providing to her a 1/2 interest, if he so desired.
Let’s say 5 years later, husband dies. And he dies without ever having executed a Last Will and Testament.
The Law
Under Louisiana law, his estate is considered “intestate” meaning without a Will. Thus, Louisiana law will determine who gets the house.
When a spouse dies without a will, that spouse’s separate property falls to his children. The wife has no interest at all in the property. She is not entitled to the usufruct (use and enjoyment) over that property – as is the case with community property (jointly held property acquired during the marriage).
Proper Handling of the Situation
All of this could have been rectified by the husband having a Will in which he could have handled his separate property. He could leave the house outright to his wife, or he could leave her the usufruct of the house, and further provide that she would have the right to sell the home subject to the usufruct and let her usufruct continue over the proceeds.
/https://neworleansestatelaw.com/publications/what-is-a-usufruct-under-louisiana-law/
The key is by sitting down and working through an estate plan, he could lay out exactly how he wanted his separate property to be handled. He would know all the ramifications if he died without a will.
So in closing, if you or your spouse have separate property, it’s imperative that you consider what you want to happen to that property upon your death. As otherwise, the law may provide a result that you do not want.
Chip LoCoco
New Orleans Estate Planning Attorney