Why can't I leave my house to my spouse?
A married couple comes to me and wants a simple will. They want it to say that if one spouse dies, everything is left to the surviving spouse, and upon the death of the second spouse, everything is split equally among our children. It sounds simple (and it very well could be). But if any of the children are forced heirs, it could hinder their desire to leave everything to the surviving spouse in a will.
Who is a forced heir?
Generally, in Louisiana, there are two categories of children that are forced heirs: (1) children under the age of 24 and (2) regardless of age, children incapable of taking care of their person or property due to physical infirmity or mental incapacity. Even though a person who has turned 18 in Louisiana has reached the age of majority, that person will still be a forced heir until they reach the age of 24.
What does being a forced heir mean?
As a forced heir, a child is entitled to a certain portion of the deceased person's probate estate. The probate estate is all property except for life insurance, most retirement accounts (such as 401(k)s and IRAs), and other nonprobate property. If the surviving spouse is left all property in outright ownership, the forced heir would have a claim to a portion of the inheritance in his or her name.
What is the forced heir's required inheritance?
A forced heir is entitled to 1/4 of the probate estate if there is only 1 child. If there is more than 1 child, the forced heirs are entitled to 1/2 of the probate estate divided by the number of forced heirs. For example, for 2 forced heirs, each would be entitled to 1/4 each of the probate estate, and for 3 forced heirs, each would be entitled to 1/6 each of the probate estate.
Can a forced heirship issue be avoided?
Yes, there are a couple of ways to avoid the forced heirship issue.
Life insurance, certain retirement accounts (such as 401(k)s and IRAs), or other nonprobate property can be used to satisfy forced heirs claims. To do this, the couple could leave all probate property (such as real estate, vehicles, stock) outright to the surviving spouse. As long as the forced heirs receive nonprobate property in an amount equal to or greater than their required inheritance as a forced heir, there are no issues. However, parents of forced heirs are often hesitant to leave a lump sum of money to their forced heirs.
The next option is to leave a forced heir's inheritance subject to a usufruct in favor of the surviving spouse. A usufruct is a form of ownership in Louisiana that divides the ownership between the usufructuary and the naked owners. During the term of the usufruct, the usufructuary can possess, use, and administer the property as well as collect the income, utility, or profit from the property. At the end of the usufruct, the property passes to the naked owners.
Here, the surviving spouse would be the usufructuary, and the forced heirs would be the naked owners. The surviving spouse, as the usufructuary, would have the ability to use the property and get income from it, but they could not sell or otherwise get rid of the property without the consent of the forced heirs as the naked owners. At the death of the surviving spouse, all property subject to the usufruct would pass to the forced heirs. Despite these limits, practically this option is the closest to the married couple's original intent to leave all property to the surviving spouse.
Finally, there are a very limited set of circumstances where a parent can disinherit a forced heir in their will. For example, if a forced heir attempts to kill a parent, that forced heir can be disinherited.
Final thoughts
Despite the Seussical rhyme in the title to catch attention, Louisiana does have limits on how a parent with forced heirs can give away their property in a will. Forced heirship is unique to Louisiana and is another good reason for Louisiana residents to speak with a Louisiana attorney about wills. For more information, contact me.