This is an unfortunate scenario that plays out all too often. First, let’s explain what “intestate” means. Simply put, it means you died without a Last Will and Testament in place. Louisiana has a specific set of rules that come into play in the event you do not execute a valid Louisiana Will. These rules will determine who gets your property. The rules are not always favorable to the surviving spouse, nor are they always what you would have wanted.
In the majority of succession cases we deal with where one party dies without a will, the surviving spouse comes to see us to explain their rights to the property. It’s a hard pill to swallow when we explain that they technically only own their ½ of the community property in full ownership, but the kicker is the deceased spouse’s ½. If you have children, that actually goes to them in naked ownership, with the surviving spouse having usufruct. That sounds fine until you understand the Louisiana term “usufruct” and what it means for your property ownership. Usufruct in Louisiana is the “use” of the property. You have to give it to the naked owners when your usufruct expires. The law states that usufruct expires when you die or remarry, whichever comes first. You CAN have a usufruct for life, regardless of whether you remarry, but that MUST be set up before the owner of the property dies. This is usually done in the form of a Louisiana Will that gives a “Lifetime Usufruct” to the individual.
Let’s say in our example Mom died without a will, leaving Dad to live in the home by himself. They had children, some his, some hers from a previous marriage. Everything is fine until Dad decides to remarry.
This is where most problems arise. You see, Dad only owns ½ of the marital home outright, he has usufruct of the other ½ that was owned by his deceased wife. Usufruct only gives Dad the “use” of the property until he dies or remarries, whichever happens first.
In this scenario, Dad is remarrying, thus his usufruct will expire and he no longer has “use” of her ½ of the property.
What happens now? Well, a few things can happen. The children can reclaim their inheritance from their Mom in full ownership and kick Dad out of the home on the day he marries Step-Mom. (It’s usually the step-children that do this, but we see it with blood related children as well).
The other option is the children can donate their inheritance back to Dad and he will own the property in full ownership. BUT, they don’t have to.
The biggest issue we see in estate and succession work at our office is when a new person (step-parent) is introduced into the picture. This creates a certain level of anger and sometimes hatred towards the surviving parent.
Adult children will say things like: “Dad, we were ok with everything until you decided to get remarried to HER! We don’t want her (Step-Mom) living in Mom’s home with you.” Or, the step-children whom never really cared for Dad will step forward and reclaim their inheritance as soon as he remarries.
This is their right under the law of usufruct in Louisiana. There are ways to avoid this happening by establishing an estate plan that outlines who inherits your property when you die. This is usually accomplished by a Louisiana Last Will and Testament in one of two ways:
- You give your partner the property in FULL OWNERSHIP. This will allow them to own the property and not have to worry about a thing after you die. Keep in mind, when your partner dies, the property will stay in his/her lineage. This means your ½ of the community property will go to your partner’s family when they die. If this is not your desire, then;
- You give your partner a LIFETIME USUFRUCT. A lifetime usufruct will allow your surviving partner to remain and use the home until they die, whether they get remarried or not. At that point, the property will revert back to your lineage and your children can have it. This is what most people do as they want their spouse to enjoy and use the property, but want it to eventually go back to their heirs at a later date.
Remember, once you die, you cannot come back to tell us what you wanted to do with your property! These situations are much easier to fix on the front end and our firm can execute a few documents to ensure your wishes are carried out and your spouse isn’t kicked out of the family home.
If you are located anywhere in Louisiana and need help with a matter such as this, feel free to give my law firm a call and we’ll discuss a plan that will take care of your needs without breaking the bank.
This article is meant for informational purposes only and does not provide legal advice. Nor, does it form an attorney/client relationship with the Law Firm. Laws change often and it is important that you contact our office to speak with an attorney before making any decisions based on articles contained on this website.
Attorney R. Jerome Andries
Louisiana Succession and Estate Planning Attorneys
Phone: (318) 269-5857