Forced Heirship in Louisiana
Louisiana is the only state in the United States which has the concept of forced heirship.
What Is Forced Heirship?
Forced heirship is an ancient civilian concept derived from Roman law. The law of forced heirship provides that certain family members cannot be disinherited. The law, as originally enacted, provided that any child of a decedent was entitled to a “forced portion” or “legitime.” A child deprived of their forced portion could file a claim against the estate.
Who Are Forced Heirs?
The concept of forced heirship has been eroded over the years. At the present time (June 2017), forced heirs are: (1) children who are under twenty-four (24) years of age at the time of the decedent’s death; or (2) children of any age who, because of a mental or physical condition, are permanently incapable of taking care of their person or administering their estate at the time of the decedent’s death. La. Civ. Code art. 1493.
A New Wrinkle
In 2003, the Louisiana legislature, in their infinite wisdom, injected a new level of uncertainty in the law of forced heirship by the adding a new class of forced heirs. La. Civ. Code art. 1493(E) now (as of June 2017) states that “for purposes of this Article ‘permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent’ shall include descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.”
Translating this to plain English, a forced heir now includes a child or any age who has an inherited condition that may render them incapable of caring for themselves at some point in this future. What this means in real terms is anyone’s guess. To date, there are several cases holding that bi-polar disorder is an inherited condition that may render a person incapable of caring for themselves in the future.
Under current law, an argument could be made that almost any mental or physical condition could render a person a forced heir, including diabetes, high cholesterol, high blood pressure and alcoholism. Medical evidence suggests that a person can be genetically predisposed to each of these conditions, which would render such conditions heritable. If left untreated, even a common medical condition such as high blood pressure could render a person unable to care for themselves. As such, a credible argument could be made that a person suffering from alcoholism, diabetes, high cholesterol, high blood pressure or any other inherited medical condition, is a forced heir.
The open-ended class of forced heirs has spawned a flood of litigation as creative lawyers mount attacks on behalf of disgruntled children. As such, careful planning is necessary to minimize the potential for a forced heirship claim.
How Much Is The Forced Portion?
If a decedent has one forced heir, the forced portion is one-fourth (1/4) of the estate. If a decedent has two or more forced heirs, the forced portion is one-half (1/2) of the estate.
There are a few limitations on the forced portion. First, a forced heir is not entitled to more than he or she would have received if the decedent had died intestate. For example, if there are five (5) children, a forced heir would not be entitled to more than one-fifth (1/5) of the estate. Second, a forced portion can be held in trust or subject to a usufruct in favor of a surviving spouse.
Life insurance and other retirement benefits paid outside of probate to a forced heir will be credited toward a forced portion.
Can a Grandchild Be A Forced Heir?
Grandchildren can be forced heirs in certain instances. If a child predeceases a parent but is survived by his or her own children (i.e., grandchildren), such grandchildren are forced heirs if the predeceased child would have been under twenty-four (24) years of age at the time of death of the parent.
Estate Planning With Forced Heirs
Proper planning is critical in the area of forced heirship. If a forced heir exists, the forced portion may be held in trust to prevent a forced heir from directly accessing such funds. Because of the current uncertainty in the law that now deems any person a forced heir that has an inherited medical condition that may render them incapable of caring for themselves in the future, it is prudent to include conditional clauses that leave a forced portion in trust, or subject to a spousal usufruct, in the event of an unforeseen claim.
Theus Law Offices specializes in a complete range of estate planning and elder law services, including wills, trusts, probate, successions, estate administration and probate litigation. If you need a Louisiana wills and trusts lawyer or probate attorney in Alexandria, Lafayette, Lake Charles, Baton Rouge, New Orleans, Shreveport, Monroe, Central Louisiana or elsewhere in Central Louisiana, let our estate planning attorneys and probate lawyers help you.
A divorce necessitates an estate plan review
If you’re divorcing, it’s important to review your estate plan as early as possible, for two reasons: First, you may wish to revise your plan immediately to prevent your spouse from inheriting or gaining control over your assets if you die or become incapacitated before the divorce is final. Second, although a divorce judgment or settlement automatically extinguishes certain of your former spouse’s rights, some documents must be modified to ensure that he or she doesn’t receive unintended benefits.
Consider revising your will and any revocable trusts to exclude your spouse. Note that, in many states, your spouse will retain elective share or community property rights to a portion of your estate until the marriage ends.
But revising your will or trust will limit your spouse to the legal minimum if you die before the divorce is final. If you have irrevocable trusts, determine whether they provide for your spouse’s interest to terminate automatically upon divorce.
Other actions to consider include:
- Changing beneficiary designations in IRAs, life insurance policies, annuities or retirement plans (note that federal law prevents you from removing your spouse as beneficiary of a retirement plan, without his or her consent, until the divorce is final),
- Revising payable on death (POD) or transfer on death (TOD) designations in bank or brokerage accounts,
- Revoking powers of attorney or health care directives naming your spouse as agent, and
- Establishing trusts for your minor children. (If they inherit assets from you outright, a court will likely appoint your former spouse as conservator.)
Finally, bear in mind that, under the Tax Cuts and Jobs Act, any alimony paid is no longer deductible by the payer or taxable to the payee.
In light of this major life event, don’t hesitate to turn to us. We can review your estate plan and recommend any revisions necessary because of the divorce.
Theus Law Offices specializes in a complete range of estate planning and elder law services, including wills, trusts, probate, successions, estate administration and probate litigation. If you need a Louisiana wills and trusts lawyer or succession attorney in Alexandria, Lafayette, Lake Charles, Baton Rouge, New Orleans, Shreveport, Monroe, or elsewhere in Central Louisiana, let our certified estate planning specialist and probate lawyers help you.