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Is Forced Heirship Real and How Common Is It - Werner Law Firm

Is Forced Heirship Real and How Common Is It?

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Written by Troy Werner

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POSTED ON: December 20, 2022

Forced heirship is a concept or legal stipulation that involves leaving a mandated portion of your estate to an heir. In other words, forced heirship implies that it is illegal to disown or disinherit certain heirs without precedence. The concept of forced heirship stems from civil law, a largely European legal system derived from Roman […]

Forced heirship is a concept or legal stipulation that involves leaving a mandated portion of your estate to an heir. In other words, forced heirship implies that it is illegal to disown or disinherit certain heirs without precedence.

The concept of forced heirship stems from civil law, a largely European legal system derived from Roman law; the United States generally uses common law as its basis, which originated in medieval England.

Therefore, forced heirship is irrelevant for most Americans. As a legal concept, forced heirship is almost nonexistent in the United States, except for Louisiana.

As such, most people in the United States can choose to distribute their assets however they see fit, regardless of whether they have children or not. Louisiana uniquely adopted the forced heirship rule to prevent citizens from disinheriting their children up until a certain age. Nevertheless, there are ways to work around this rule.

Understanding Forced Heirship

Civil law and common law evolved separately yet share many similar characteristics. Forced heirship is not one of them and is generally not a known facet of American law.

The Louisiana Civil Code uniquely states that forced heirs are “descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.”

This means if you intend to leave behind an estate for your loved ones, you are required to bequeath part of your estate to any children aged 23 or younger, as well as children deemed mentally or physically incapacitated. Furthermore, grandchildren may be considered forced heirs if their parents died before you did.

How Does a Forced Heirship Work?

Forced heirship simply legally reinforces a child’s right to inherit from their parents, bar a legitimate disinherison. There are eight explicit reasons in the Louisiana Civil Code under which a parent may disinherit their child and cause them to lose their forced heirship.

If a child was not legitimately disinherited before the decedent passed away, they are entitled to a so-called legitime. This is the forced portion to which a forced heir is entitled, depending on the circumstances of the heir and the decedent.

If they are an only child, about 25 percent of the estate must become a “forced portion” and is distributed to the forced heir. If there is more than one forced heir, 50 percent of the estate becomes a forced portion and is equally divided among all parties.

The remainder of the estate is called the disposable portion and is either distributed as per intestacy laws (if no will exists), or as per the decedent’s final will.

Spousal Forced Heirship

While children are forced heirs, spouses are not. Louisiana is a community property state, meaning everything obtained in marriage is co-owned and passes into the spouse’s ownership. Separate property, or anything owned before or outside of marriage, may be passed onto a spouse if no other heirs exist or if the remaining heirs have already received their portion (or as per the will).

Furthermore, Louisiana also follows the concept of usufruct. Under usufruct, if a decedent leaves behind a surviving spouse and descendants, all property passed to a surviving spouse outside of co-owned community property can be freely enjoyed and used by the spouse until they remarry or die. In contrast, the descendants remain “naked owners,” meaning they own the property on paper and become full owners of it after their ancestor’s surviving spouse remarries or passes away.

To recap: under Louisiana law, dying while married with children leaves behind an estate that must be distributed among a surviving spouse and your legitimate heirs. If you leave behind one child, a quarter of the estate becomes theirs. If you leave behind multiple, half of your estate must be split between them.

All co-owned community property becomes your spouse’s full property, and separate property may be split between your spouse and descendants as per forced heirship and your last will (or intestacy laws). Furthermore, property not attributed to your spouse may still be utilized by them as per usufruct until they remarry or die (at which point ownership passes to your heirs).

Can it Be Avoided?

In Louisiana, any heir aged 23 or younger, or any direct descendant with mental or physical disabilities requiring adult conservatorship, is a forced heir. But as we have mentioned, forced heirs can be disinherited, provided a proper reason is given. Louisiana defines eight valid reasons for disinheriting a forced heir. These are:

  1. A threat of physical violence towards the parent involving a gesture or an act (i.e., a verbal threat is not enough).
  2. Guilt of causing a grievous injury, cruel treatment, or a crime against the parent.
  3. Attempted murder of the parent.
  4. Accusing the parent of a crime without any evidence or reasonable basis.
  5. Blackmailing the parent through the threat of violence or otherwise.
  6. Marrying as a minor without the parent’s consent.
  7. Becoming convicted of a crime carries a potential punishment of life imprisonment or death.
  8. Becoming estranged from a parent without reasonable cause.

Last but not least, a forced heir can also choose to renounce their legitime of their own accord. Suppose you have an estranged daughter and did not disinherit her. In that case, she is within her rights to give up her portion of the estate anyway and let it pass into your disposable estate to be distributed as per intestate law (or a will).

Estate planning can be confusing. Every state has its own rules regarding probate, joint property in marriage, intestacy, and more. Understanding how your state tackles death and the distribution of assets can be overwhelming. It pays to work with an experienced professional and create a plan that suits your needs and circumstances.

Is Forced Heirship Real and How Common Is It? - Werner Law Firm

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