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Thursday, May 9, 2019

The Unique Louisiana Law of Forced Heirship

By Vincent B. "Chip" LoCoco, Esq.

 

One legal term I am most often asked to explain is forced heirship. Louisiana is the only state in the union which has forced heirship as a law. Let me reiterate that again. Louisiana is the only state. Thus, if you are talking to a wealth advisor from another state or friends from another state who are offering advice to you relative to your estate, tread very carefully. Forced heirship is not a consideration those other people need to worry about. Forced heirship for a person living in Louisiana needs to always be considered. So why does Louisiana have forced heirship? The answer lies in our unique system of laws.

Forced heirship is an ancient civilian concept. It was derived from Roman and French law. Eventually the law of forced heirship was codified in French law and was part of Napoleon’s codified law of France. Louisiana, with its strong French influence, adopted Napoleon’s code of laws. Thus, the Civil Code of Louisiana became the system of laws here in our state. Yet again, the only state in the union which relies on a Civil Code for its system of laws. That is how forced heirship became a part of our state’s laws.

So what is forced heirship? The simple explanation of the law of forced heirship is the requirement that a portion of a person’s estate at death must be left to his or her children, who under law are known as forced heirs. The law can be found in the Louisiana Civil Code, Article 1493.

Originally, every child of the decedent was considered to be a forced heir. That law, over the years, has been changed and amended many times. Around the 1990s, the law was amended to state that forced heirs were only children who were under the age of 24. Succession of Lauga (1993) 624 So.2d 1156 then came along and declared that Art 1493 was unconstitutional under age discrimination so the 23 year age limit did not apply. For a short period of  time, all children were once again forced heirs. However, the Louisiana Constitution was subsequently amended to overcome the Lauga decision.

So from that point forward, this is the current law of forced heirship. Forced heirs are those descendants of the decedent who at the time of the decedent’s death are twenty-three (23) year 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 the decedent’s estate that must be left to the forced heir. This is called the “forced portion”. If a person dies, leaving one forced heir, the “forced portion” is one-quarter (1/4) of the decedent’s estate. If a person dies 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. The portion not required to go to the forced heir is known as the disposable portion of the estate, and can be left to whomever the decedent desires to leave it to.

Love it or hate it, 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 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 the child in trust, so that they cannot access the funds themselves for a certain time period, with said funds being controlled by a Trustee whom is appointed in the will. Additionally, the forced portion could also be subject to a usufruct to the surviving spouse, whereby the surviving spouse has full use of the property during his/her lifetime. The forced heir merely has what is called the “naked ownership” of the forced portion. This is allowed under Louisiana Law. The official legal term is a usufruct is an allowable “impingement on the forced portion.”

That is the importance of a well-thought out estate plan and the use of a Last Will and Testament. Without a will, and leaving a forced heir, the intestate (without a will) laws of Louisiana will dictate what happens, and your spouse could, and most likely will be, adversely affected.

This article is a very brief discussion of forced heirship. You should consult with an estate planning attorney to make sure that you have an estate plan in place that protects both your children and your spouse upon death.


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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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