Why can't I leave my house to my spouse? The tale of forced heirship in Louisiana.
Did you know that Louisiana’s unique forced heirship laws might get in the way of your “simple” estate plan? Learn what you can do to ensure your Louisiana estate plan is exactly what you want.
When creating your estate plan, it’s really important to understand what you want to happen when the time comes.
You want to make sure you create a plan of action that takes care of your loved ones when you are no longer able to do so.
As the first step of any estate planning process with me, I ask my clients to think about their estate planning values very carefully.
Because everyone’s situation is unique to them, there are many different options for how you want your estate plan to look.
For example, let’s say you’re focused on maximizing your assets and reducing amounts owed in taxes by your loved ones after you pass. Then, we’ll set up your estate plan to reflect these values and do what we can to establish this goal.
The same goes for if you’d like to pass on a business or sell real estate before you pass away. These goals will help shape the estate plan that’s designed especially for you.
While there is no such thing as a perfect estate plan that works for everyone, there is such a thing as an estate plan that is perfect for you.
So, understanding your values is step #1 in any estate planning process.
The next important step is to understand Louisiana estate law.
This is where my knowledge and legal experience come in the maximize the effectiveness of your estate plan.
It is very common for my clients to have certain expectations that aren’t necessarily fully informed.
In fact, it’s my job to bring the legal stuff to you and make sure you understand all of your options.
By understanding your values, I can better inform you of the way Louisiana law works. Then, together we can come up with the estate plan that works best for you.
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Forced Heirship in Louisiana
More often than not with my clients, I’m discussing a concept called forced heirship as it pertains to their Louisiana estate plan.
Here’s a common scenario:
I start working with a married couple on their estate plan. They have clear values and just want a simple will.
Essentially, they want the other to be taken care of should something happen to one of them.
So, if one spouse dies, they’d like everything to go to the surviving spouse. And, upon the surviving spouse’s death, they’d then like everything to pass in equal distribution to their children.
This is extraordinarily common. And, it does really sound simple.
But, here’s the deal: we have to think about Louisiana's forced heirship laws.
The bottom line is if any of the children are forced heirs, it could hinder the couple’s desire and ability to leave everything to the surviving spouse in a will.
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.
In a recent blog post, I discuss probate property vs. nonprobate property. So, let’s review:
Generally speaking, probate property is owned property that can be passed through a will.
Common examples of probate property include:
Houses
Cars
Boats
Jewelry
Heirloom furniture
Nonprobate property refers to property that is (typically) bound by federal law and cannot be passed via a will.
Therefore, nonprobate property commonly includes:
life insurance policies
most retirement accounts (such as 401(k)s and IRAs)
So, remember that “simple will” our married couple wanted to write that left all property to the surviving spouse and then to the children?
Well, in Louisiana, 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 their name.
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Who is a forced heir in Louisiana?
Generally, in Louisiana, there are two categories of children that are forced heirs:
children under the age of 24
regardless of age, children who are incapable of taking care of their person or property due to physical infirmity or mental incapacity.
Additionally, even if a person has turned 18 in Louisiana and reached the age of majority, that person will still be a forced heir until they reach the age of 24.
What is the forced heir's required inheritance?
Louisiana succession law states that:
A forced heir is entitled to 1/4 of the probate estate property 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, if the married couple has 2 children aka 2 forced heirs, each child would be entitled to 1/4 each of the probate estate.
If they had 3 children, aka 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 married couple could leave all probate property (such as real estate, vehicles, and 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 children aka forced heirs. This is completely dependent on your situation.
But, it’s incredibly important to understand the scenario before making these decisions.
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2. 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 type of ownership in Louisiana that divides the ownership of a property between the usufructuary and the naked owners.
In our example, the surviving spouse would be the usufructuary, and the forced heirs (aka kids) would be the naked owners.
During the term of the usufruct, the usufructuary (surviving spouse) 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 (children).
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/naked owners.
At the death of the surviving spouse, all property subject to the usufruct would pass to the forced heirs.
Despite its limits, this is the option that fits closest to the married couple's original intent to leave all property to the surviving spouse.
Furthermore, while there are lots of legal things to understand, it is also the closest option when your values include taking care of your surviving spouse and preparing your children for inheritance later in their lives.
Plan Today for Peace of Mind Tomorrow
3. Finally, there are a very limited set of circumstances where a parent can disinherit a forced heir in their will.
This is not a common circumstance, but it is worth noting, as it is a viable option for some.
Essentially, given the right situation, a parent can legally block the inheritance rights of a child who would otherwise be considered a forced heir.
For example, if a forced heir attempts to kill, harm, or otherwise incapacitate a parent, that forced heir can be disinherited.
While there are other reasons for disinheritance to occur, it is far from common and should be considered on a case-by-case basis.
As you might have guessed, the process would certainly call for the oversight of a licensed lawyer in your state.
So, if this option is something you’re considering, you should absolutely seek legal counsel from a licensed estate planning lawyer in your state.
It’s always a good time to plan for your family’s future.
Your will can be as simple or as detailed as you need it to be.
When designing an estate plan that’s perfect for you and your family, it’s important to understand what matters to you.
Once you’ve decided on your estate planning values, it’s vital to assess Louisiana estate law to best formulate your plan of action.
Remember, Louisiana does have limits on how a parent with forced heirs can give away their property in a will.
So, in order to make your estate plan as accurate as possible, it’s important to understand what you can and cannot give away via your will.
Again, it’s very common for spouses with children under the age of 24 to have an estate plan that passes property from one spouse to the next upon death.
However, in order to make this happen, you’ll have to consider some of the options we discussed above:
Leaving nonprobate property of equal value to the probate property
Establishing a usufruct in favor of the surviving spouse
And, in uncommon scenarios, disinheriting forced heirs
Forced heirship is unique to Louisiana and is another good reason for Louisiana residents to speak with a Louisiana attorney about an estate plan that works for you.
Set yourself apart from the 65% of Louisianans who currently do not have a will, schedule your strategy session today.
Happy Planning!
Take Care,
Addie
Are you ready to create an estate plan that’s right for you?
FAQ
Q: What does being a forced heir mean?
A: As a forced heir, a child is entitled to a certain portion of the deceased person's probate estate.
Read up on probate vs nonprobate property here to better understand the options available to you and your loved ones.
Q: Who is a forced heir?
A: Generally, in Louisiana, there are two categories of children that are forced heirs:
children under the age of 24
regardless of age, children who are incapable of taking care of their person or property due to physical infirmity or mental incapacity.
Additionally, even if a person has turned 18 in Louisiana and reached the age of majority, that person will still be a forced heir until they reach the age of 24.
If you’re looking for specific feedback on your situation, I highly recommend scheduling a 60-minute strategy session with me. You can find out more information and book yours here.
Q: What is the forced heir's required inheritance?
A: Louisiana succession law states that:
A forced heir is entitled to 1/4 of the probate estate property 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, if the married couple has 2 children aka 2 forced heirs, each child would be entitled to 1/4 each of the probate estate.
If they had 3 children, aka 3 forced heirs, each would be entitled to 1/6 each of the probate estate.
Take a look behind the legal curtain.
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Take a deeper dive into Lousiana estate planning with more posts by Addie Prewitt Law:
It’s important to me to make Louisiana estate planning as simple as possible.
You can create a last will and testament, sign a power of attorney, and even write down your final wishes. But, if you don’t approach your estate plan with a big picture strategy, you might just miss the mark when it comes to creating the best estate plan for you and your family.
The first step of any estate plan is knowing you have to put one in place. So, since you’re here, you’ve already done the first (and probably the most important) step.