Louisiana Forced Heirship Rules

The Louisiana Special Needs Trust - and Forced Heirship

It's common these days for Louisiana families to want to leave assets to someone who has what is commonly referred to as "Special Needs."

People who have "Special Needs" are typically defined as someone who, as a result of a disability, is receiving some sort of federal or state government aid. In order to continue to receive these government benefits, it is often required that the recipient's assets be maintained under a certain amount or value.

When you leave assets to someone who is benefiting from certain kinds of federal or state aid due to a condition which renders them unable to care for themself, the inheritance can disqualify them from future benefits.

So, many people who wish to leave an inheritance to someone with "Special Needs," often uses their Will or Trust to leave the inheritance to a trust. Not any trust but a special type of trust that is commonly referred to as a Special Needs Trust.

The idea here is that if the trust can be used to replace the government benefits, then that trust may disqualify the recipient from receiving future government benefits. But if the trust is designed to supplement the public assistance, then the government benefits may be preserved. 

The continued access to the government programs may be necessary for the person to maintain a level of dignity and humane care.

Further, in Louisiana, residents must also be aware of Louisiana Forced Heirship laws when they are setting up their estate planning program. Louisiana forced heirship laws generally provide, in part, that if you have a child of any age that is incapacitated, then you cannot disinherit them. If you leave a forced heir's portion in a trust, you must meet the requirements of the "forced portion in trust" provisions.

You can refer to my book, "Estate Planning in Louisiana," if you want to know more. Or, you can call our office at 866-491-3884, to start a conversation about establishing and maintaining an estate legal program that protects what you have for yourself and your loved ones.

Louisiana Couple With Young Adult Children Can't Leave Everything To Each Other

I met with a middle-aged couple yesterday from Prairieville. They wanted to get their legal affiars in order. They said that getting their legal affairs in order had been on their "to-do list" for a few years, and they were glad they were now getting it taken care of.

They were wanting to keep things as simple for themselves as possible. They indicated that they each wanted Wills leaving everything to the surviving spouse, and then after both spouses died, they wanted everything to go equally to their three adult children, who were 18, 19. and 21.

I let them know that, at least for now, they could not leave everything to each other. Since they still had children who were forced heirs (age 23 or younger), they are forced by Louisiana law to leave their children an inheritance.

I told them they could satisfy these forced heirship rules by leaving their surviving spouse the usufruct of their estate, and naming the three children as the naked owners. Under this scenario, protections would be in place after the first spouse dies to ensure that when the surviving spouse dies, the children of the first spouse to die will receive the inheritance from the first spouse to die.

Example. Mom dies and leaves the usufruct of her estate to Dad, and Mom's Will lists the three children as the naked owners. Mom dies. Years later, Dad remarries New Wife and changes his Will so that his estate goes to New Wife. Since Mom left the usufruct of her estate to Dad and names Mom's children as the naked owners, then when Dad later dies, Mom's estate must go to the children before any of Dad's estate can go to New Wife.

I've written quite a bit more about this in my book, "Estate Planning in Louisiana, A Layman's Guide," but if you have children who are 23 or younger, realize you will not be permitted to leave your estate entirely, in outright ownership, to your spouse. You must satisfy the Louisiana forced heirship rules.