How To Leave USUFRUCT to Your Spouse

As an estate planning attorney, I deal with the Louisiana usufruct often. Lots of people come in the office and they say they want to leave the usufruct of their estate to their spouse. Some of these people do not realize that there are other alternative ways to leave things to their spouse, children, or other loved ones, but this is about the decisions one needs to make when they leave the usufruct of their estate to their spouse.

One option is just the general usufruct where each spouse writes Wills leaving the usufruct of their estate to their spouse. The problem that some surviving spouses face is that when they go to sell the home, they are required to get the written permission of ALL of the deceased spouse's heirs (the naked owners) before she can sell the house. Sometimes, as you might imagine, this can be a problem.

So, Louisiana law allows you to leave usufruct to your spouse and give your spouse the authority to "dispose of nonconsumables." The home is a nonconsumable. However, when the surviving spouse goes to sell the house, title examiners for the buyer will still require the naked owners to sign off on the sale.

So, the next step is to leave your spouse usufruct, designate your children (or other heirs) as naked owners, and provide in your WIll that the heirs' naked ownership interest will be held in a testamentary trust with the surviving spouse as trustee of that testamentary trust. This usually allows the surviving spouse to control subsequent sales of "usufruct property"  by himself or herself.

Another issue to address when you leave usufruct is to determine the term of the usufruct. The two most common terms people provide for their spouse's usufruct is either "usufruct for life," or "usufruct until the earlier to occur of death or remarriage."

Note that if you have accumulated wealth and there is the potential for estate tax, then you should strongly consider making your spouse's usufruct last for your spouse's lifetime. This qualifies for special tax treatment allowing for zero estate to be paid after the first spouse dies.

Know that you are not required to leave your spouse usufruct. Usufruct is not always the perfect way to leave things to your spouse or other loved ones. Hope this helps!

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