When a person owns property in full ownership, all three principals of ownership rest in that person. Those principals are: 1) They have the right of possession; 2) the income derived from it 3) and the right to sell, lease, mortgage or otherwise transfer the property. Property in this context means any asset, not only real estate.
In Louisiana, a person can grant the right of usufruct over any type of property. When this is done, then the rights of full ownership are split into usufruct and naked ownership, with the three principals of ownership being divided among them.
The usufructuary is the person who owns the usufruct. So what does it mean to have the usufruct over property? If one looks to the Latin root of the word, usufruct, then it helps one to understand what rights a usufructuary has when it is granted. Usufruct comes from the Latin terms: Usus: meaning the use, and Fructus meaning the fruit (rent and income). Thus, the usufruct provides the usufructuary with the right to use and possess the property (Usus), and he/she can also derive income from the property subject to the usufruct (Fructus). The usufruct to a spouse can be for life or can end upon remarriage.
As seen above, the usufruct splits the ownership from full ownership into a Usufructuary/Naked Owner relationship. The naked owner owns the property subject to the grant of the usufruct. What does that mean for the naked owner? That answer depends on how the usufruct was set up.
For example, the usufruct of a home gives the usufructuary the right to live in the home or to rent the home and receive the rental income. Unless the usufructuary was specifically granted the right to sell the home without the consent of the naked owner, the usufructuary may not sell the home without the naked owner’s consent. This right to sell by the usufruct without consent of the naked owner can be granted or restricted in someone’s will. During the duration of the usufruct the naked owners may not interfere with the usufructuary’s peaceful possession and use of the property subject to usufruct. At the termination of the usufruct the naked owners become the full owners of the home. In other words, the naked owners now take full ownership of the property.
If the usufruct is over a bank account, the usufructuary may spend the cash. However, when the usufruct ends the naked owners are entitled to receive the value of the bank account at the inception of the usufruct. This concept is known as a usufructuary accounting. More often than not, this accounting is not an issue. For example: dad leaves the naked ownership of his estate to child, and usufruct to wife. When wife dies, she leaves her entire estate to that same child. No usufructuary accounting is due because that child was the legatee (heir) of both parents. All of the assets passed down to that person. Sometimes though, that is not the case.
Here’s an example. Dad dies leaving a Last Will and Testament which left the usufruct of his estate to Mom, and naked ownership to their child, Jane. Together, Mom and Dad had about $1 million in the bank. Being community property, Dad’s interest in the accounts is one-half or $500,000.00. After Dad’s Succession was complete, all of these bank accounts were put in Mom’s name only.
Mom then gets remarried and has a son, Frank. Mom has a fallen out with Jane and changes her Will. She leaves her entire estate to her son Frank.
Many years later, Mom dies.
Frank assumes that since all of the money in the account was in Mom’s name, and that Mom left a Last Will and Testament leaving her estate to Frank, that all of the money would go Frank. Is he right or wrong? He is wrong.
Since Dad left Mom the usufruct of his estate, Mom’s estate owes a debt to Dad’s heir, Jane (also called a usufructuary accounting due to the naked owners). Dad had left Mom the usufruct of $500,000. That “usufructuary debt to Jane as a naked owner” needs to be satisfied first before Frank may inherit a penny.
And if Mom had spent some of the money and only had enough at her death to satisfy the usufructuary debt, then Frank would not inherit – even though she had a very clear Will leaving her money to him.
What often happens – and which makes the accounting easier- is that upon the death of a spouse, the surviving spouse with the usufruct re-titles accounts. So, let’s use our example from above with the cash and see what that would look like.
When Dad died, his heir was Jane. The account with 1 million dollars would be divided. 500,000 would go in an account in Mom’s name alone, because that was her ½ community interest in the account. The other 500,000 (dad’s ½ community interest in the account) would go in an account in the name of Mom as usufruct and Jane as Naked Owner. The usufruct account would be set up so that all interest and income would sweep over quarterly or yearly into the personal account of Mom, since she owns the income of the money subject to the usufruct.(remember Fructus)
When Mom dies, usufruct is removed and Jane owns that entire account that was titled as a usufruct account. The account in Mom’s name alone would go to Frank. Doing it this way, just makes the accounting a whole lot easier. Mom can still access and use the 500,000 in the usufruct account and her heirs would still be subject to a potential usufructuary accounting, but by setting up the accounts this way, it makes it easier upon Mom’s death to figure it all out.
I’m often asked why does Louisiana even have the concept of usufruct. I do believe it’s because of our unique law of forced heirship her in Louisiana.
Louisiana defines “forced heir” to include: A child of the decedent who is under age 24 at the time of the decedent’s death; or A child of the decedent of any age who is permanently incapacitated. Grandchildren of the decedent can also be considered forced heirs if their parent (the decedent’s child) died before the decedent and, at the time of the decedent’s death, would have been under age 24 or permanently incapacitated.
Forced heirs are entitled to a certain portion of a decedent’s estate. This portion is often referred to as the “forced portion” or “legitime.” The forced portion is the share that goes to the forced heirs. The disposable portion is otherwise distributed through intestacy or in accordance with the decedent’s Last Will and Testament. So how much does a forced heir receive? If the decedent has only one forced heir, that heir will be entitled to 25 percent of the estate. Everything else will pass to the disposable portion. If the decedent has more than one forced heir, the forced heirs will receive half of the estate and the disposable portion will receive the other half.
So where does usufruct come in? This is how it is most often used here in Louisiana. A decedent is free to give and is allowed to give his surviving spouse a usufruct over his or her property. And this is the key. This usufruct can extend to the forced portion of the decedent’s estate. In legal terms, it is an “allowable impingement on the forced portion.” The usufruct can include community property, separate property, or both. It doesn’t matter whether the forced heir is a child of the surviving spouse.
In simple terms, without the concept of usufruct, then the law of forced heirship would mean the surviving spouse would lose the right to remain in full possession of the family home as the forced heir would own 25 percent of the decedent spouse’s interests and could then force a sale of the home, thus making the surviving spouse move. As we have seen, usufruct allows the surviving spouse to remain in the home undisturbed.
In closing, a usufruct allows you to grant certain rights to your spouse and affords your surviving spouse the ability to use and enjoy those assets, yet at the same time, offers your child or children the right to get those assets, if at all possible, at the end of the usufruct, or at least have a claim to recoup it from the usufructuary’s estate via a usufructuary accounting if the surviving spouse leaves her estate to someone else upon their death.
I hope you come away after reading this with a slightly better understanding of this ancient Civilian Law concept which is entrenched in the Law of Louisiana.
Attorney at Law