forced heirship and usufruct

Forced Heirship Forces Usufruct

Louisiana is the only state with the unique forced heirship laws which, essentially, provide that if you die a Louisiana resident, and you have forced heirs, you must leave your forced heirs are pre-determined portion of your estate.

Forced heirs are defined as children who are 23 years of age or younger, or children of any age who are incapable of administering their estate (the actual statutory definition is more complex).

If, at your death, you have one forced heir, then you must leave that one forced heir 1/4 of your estate. If you leave two or more forced heirs, you must leave them at least half of your estate. Most retirement accounts and life insurance is not included in this calculation.

The practical effect of the forced heirship laws is that that a married person, if they have forced heirs, cannot leave their entire estate to their spouse. Many married people describe that they want "Simple, I Love You" wills which leave everything to the surviving spouse. But this violates Louisiana's forced heirship laws.

And most married parents don't want assets to go directly to the children when the first spouse dies. Most couples feel that when one spouse dies, the assets should be available to the surviving spouse. 

So, if you have forced heirs and you want to leave your estate to your spouse, you have limitations. Many people leave their surviving spouse the usufruct of their estate, and they name their children or forced heirs as the naked owners. Others leave their estates to a trust which makes assets available to the spouse, but when the spouse later dies, trust assets revert back to the children or principal beneficiaries. These vehicles satisfy the forced heirship provisions. In general you can satisfy the forced heirship laws by providing for your forced heirs, but really they don't get their inheritance until after you AND your spouse pass away.

The result of this is that parents, for at least 23 years, cannot have a legal estate planning program where they leave everything they own to their surviving spouse. They must create an estate planning program that complies with the Louisiana forced heirship rules.

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
Phone: (225) 329-2450