Usufructuary accounting

Will Our Joint Accounts Be OK If My Husband Dies With Children From Prior Marriage?

If a husband and wife have joint bank accounts that are community property, and neither has an estate legal program in place, and one of them dies with a child or children from a prior marriage, can the surviving spouse's step-child(ren) give that surviving spouse grief?

You betcha! Often when asked about joint bank accounts, the spouses are concerned that the accounts will be frozen when the first spouse dies, leaving the spouse unable to pay for funeral expenses and other ongoing bills. We often tell couples to ask their bank whether the account will be frozen when one of them dies.

But the potential problem goes much deeper than that. If the husband died first (with a child or children and no legal plan in place), his surviving wife shall have a usufruct over the husband's share of the community property.

And our Louisiana laws regarding usufruct and security provide that the usufructuary (in this matter, the surviving wife) shall give security that she will use the property subject to usufruct as a prudent administrator and that she will faithfully fulfill all of her obligations as usufructuary. Now in certain matters, this security is dispensed with. But not when the naked owner (the husband's child(ren)) is not a child of the usufructuary (the surviving wife).

This security which the surviving wife must provide shall be in the amount of the total value of the property subject to usufruct. So the more she has the usufruct over (bank accounts, investments, real estate, vehicles, etc.) the more security she must provide.

So, while it is not uncommon for a surviving spouse to have access to joint bank accounts she has with her deceased husband, it IS common, if the deceased spouse had no legal plan, that the deceased husband's children will require their step-parent to post a bond or security in order to protect their future inheritance. This security can be expensive on an annual basis.

While joint accounts may not be frozen, surviving spouse and his or her step-children will be required to go through a court process together (often called "Succession" or "Probate"). Each will be represented by a lawyer or lawyers. All assets of the couple get disclosed in the court pleadings, and the deceased's children will require their surviving step-parent to post a bond as security to protect their future inheritance.

It's at this point that things often turn ugly. We'll usually hear something like, "I hope she happy because I'll never speak to her again."

Or we'll hear, "If she's going to be that vindictive, just give her the damn money."

Note that many, if not all, of these problems can be avoided by taking a little effort to work with the right estate attorney to put the right estate legal program in place. Heck, you've earned it. Now it's time to protect it.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450