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 it is 50%.
For more information, please visit my article on Forced Heirship.
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