Question: My husband and I purchased a home together and lived in it for 15 years. He died without a will. I know the home is community property, but his children (my stepchildren) are now saying they own the home and I only have usufruct of his portion. Can you explain this?!

Unfortunately, this is a question our office receives regularly.  This happens to a lot of people in Louisiana. Many believe they do not have enough assets to consider estate planning before they die; that it will be a waste of time -I can assure it is not and you should seek out an attorney to draft a will to ensure your wishes are carried out when you die.

It is a wide misconception that the surviving spouse automatically owns the home in full ownership if the other spouse dies. The answer surprises many people.

If you die without a will, Louisiana has a specific set of laws that determines where your property goes. It may not always be what the deceased wishes, which is why you should always execute a will if you are unsure, even if you don’t believe you have enough assets to mess with it.

To answer the question: the surviving spouse owns her ½ of the marital home, but only has “usufruct” over her deceased husband’s ½ of the home. His children have “naked ownership” over his half.

Usufruct is a Louisiana term that basically means “use.” You have been given the ability to use the property, while someone else (stepchildren in this case) also owns it in a different capacity. It’s an odd situation where you have one party that owns it, but cannot use it and another party that can use it, but has limitations on their use.

How long does usufruct last?

Without a will, usufruct is governed by Louisiana Civil Code article 890 and permits the individual to have use of the property until they die or remarry. Let’s say you remarry after ten years of your spouse passing; the children can make you move at that point because the usufruct has terminated. You still own your ½ of the community property, but the children now own their parent’s portion in full ownership and you will have to make other arrangements.

Can you get a lifetime usufruct?

I’m glad you asked. Yes, you can. You can execute a Louisiana will giving your spouse a lifetime usufruct over your half of the community property. This means your children cannot interfere and your surviving spouse will have “use” of the property until they die, regardless of whether they remarry. If you truly love your spouse you would probably want them to eventually move on anyway, this option gives the ability to have usufruct even when they finally remarry.

What happens when a person granted lifetime usufruct dies?

Then the property reverts back to the first to die spouse’s lineage. The children will then receive the property. This is a good way to give your spouse lifetime use of the property, but keep the property in your genetic line.

Can I just give my spouse the property in full ownership?

Yes, you can state that in your will that you wish them to have it in full ownership. This means that they have it forever and when they die, their descendants receive the property and not yours. You can do this as long as you do not have what Louisiana recognizes as “forced heirs.”

What are forced heirs in Louisiana?

This is a term that describes individuals 23 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 themselves. You have to take great care with estate planning when you have a forced heir.

 

I hope this discussion on whether your stepchildren can kick you out of the marital home has helped answer some of your concerns. The best thing you can do right now if this is something on your mind is to speak with our law firm about drafting a Last Will and Testament so that you will not have to worry about this situation in the future.

This Louisiana estate planning and succession article is for informational purposes only. It should not be used to make important legal decisions. Please contact our office about your specific legal situation. Communication though this website does not in itself constitute an attorney/client relationship.

Attorney R. Jerome Andries

Andries Law Firm

Louisiana Succession and Estate Planning Attorneys

www.AndriesLawFirm.com

Phone: (318) 229-1608