Question: My husband passed away and now his adult children are asking about things he owned before we married. He died without a will. Do I get to keep his property, or do his adult children get them? They had their own separate lives, but now are trying to load up his possessions and leave with them. They also mentioned his half of the community property.
You may be surprised to hear the answer to this scenario. This situation happens all the time in Louisiana: a married individual dies in Louisiana without a will and they owned separate property (movable or immovable property purchased before marriage).
Separate Property VS. Community Property
First, let’s discuss the difference between separate and community property. Property of married individuals is classified as either separate or community property.
To simplify: Separate property is property purchased before marriage. Community property is purchased during the marriage. Obviously, there are a few exceptions.
The separate property of a spouse is his/hers exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things; property acquired by a spouse by inheritance or donation to him/her individually, etc.
Community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things, etc. There is a presumption that things in the possession of a spouse during the marriage are community property, but either spouse may prove that they are in fact separate property.
Now that we understand the difference between community and separate property in Louisiana, let’s take a look at the question at hand. When a spouse dies intestate (without a will) his separate property reverts back to his family unless he has a will stating otherwise. In this example, the husband died intestate (no will), so his separate property will go to his children.
What about His Half of the Community Property?
Community property works differently than separate property. While they may get his separate property in full ownership, they won’t get full ownership his half of the community property. Not yet anyway.
Since he did not execute a will giving you either full ownership or a lifetime usufruct; his children will essentially share ownership with you. Basically, his children will have naked ownership of your spouse’s half of the marital property and you will be granted what’s known as usufruct.
What is a Usufruct?
Usufruct gives you the “use” of the property. You don’t have full ownership and the type of usufruct granted by Louisiana Intestate Law only lasts until you die or remarry, whichever comes first.
Will I Lose Usufruct If I Remarry?
If there was no will stating that you have Lifetime Usufruct, then yes, your usufruct over your deceased spouse’s ½ of the community property will terminate as soon as you remarry. His or her children can petition the court to terminate your usufruct.
That’s not a good situation to be in. No surviving spouse wants to find themselves in this position. It creates tension between heirs and surviving spouses all over Louisiana. It is one of the most asked succession questions at our law firm to date.
Can This Be Fixed?
If your spouse has already died, then no, it cannot be fixed or alleviated. The only way to protect a spouse from becoming part owners with adult children is to execute a valid Louisiana Will. In that will, you will need to either give your surviving spouse full ownership of your property or a Lifetime Usufruct.
What’s the Difference between Full Ownership and Lifetime Usufruct?
Full ownership means you own all aspects of the property. You can do anything you want with it and don’t have to give it to anyone else when that time limit expires. When you die, that property goes to your descendants.
Lifetime Usufruct gives you “use” of the property until you die. It does not matter if you remarry, you still retain the ability to “use” the property. It does not expire until you do and your deceased spouse’s children cannot try and force you to sell or take it from you. When you die, the property will revert back to your deceased spouse’s children.
How Do I Decide Which to Give?
It depends on whether you wish to have your property revert back to your lineage. If you want your children to have your property back when your surviving spouse eventually dies, then do a Lifetime Usufruct in your will.
If you don’t want or care if your children get your property when your surviving spouse dies, then you can give your spouse full ownership of your property.
REMEMBER, this all has to be done by way of executing a will before you die! If you don’t, your spouse may end up facing some hardships that you didn’t plan for. You have no idea what your children or family members will do or how they will treat your surviving spouse when you die and there is nothing you can do about it AFTER the fact.
I can tell you from experience that it isn’t always pretty. I’ve had to defend surviving spouses from adult step children that rose to the level of harassment in a recent Louisiana succession. This was a succession we were doing in Alexandria, Louisiana. These children didn’t care that their father loved his wife (their stepmother), the second he passed away they started fighting for the property.
I hope this article shed some light on what can happen if you die without a will and what to expect during a Louisiana intestate succession when dealing with stepchildren. If you have any questions, please give us a call. If you are unsure, it’s best to speak with an attorney at the Andries Law Firm to formulate a plan to protect your family.
Phone: (318) 269-5857
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This Louisiana succession article was written for informational purposes only. Do not use this article to make important legal decisions. Instead, contact our offices with any questions you may have about your specific legal situation. Nothing in this website itself constitutes an attorney/client relationship.