Forced heirship is an ancient civilian concept. Louisiana is the only state in the union which has forced heirship as a law. It was derived from Roman and French law.
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, who under law are known as 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.
The law spells out the portion of your estate that must be left to your forced heir. This is called the “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.
Forced heirship is the law of Louisiana. 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.
That is where proper estate planning comes in. Since we know your forced heir has to get a portion of your 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.
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 one of our attorneys today if you would like more information or if you would like to set up a meeting to begin your own estate planning agenda.