Louisiana is the only State that provides for forced heirship, that is, a percentage of one's estate that must be left to one's children. At various times in our State's history, forced heirship consisted of one-third of an individual's estate (if he or she had one child), one-half of an estate for individuals who had two children and two-thirds of an estate for individuals having three or more children.

Until 1979, parents were also forced heirs if one had no surviving children.

LOUISIANA LAW PRIOR TO JULY 1, 1990

The Louisiana Legislature continually decreased that portion of one's estate that was subject to the forced portion (or legitime) from the early 1980's through July 1, 1990. The forced portion was reduced to 25% of an individual's estate if he or she had one child, and was reduced to 50% of one's estate if there were two or more children.

ACT 147 OF 1990

Matters took a dramatic turn in 1990 when the Legislature passed Act 147. This Act was the first attempt by the Legislature to eliminate forced heirship across the board for children older than a certain cut-off period - 23 years of age. Between 1990 and 1995, much discussion and litigation ensued over forced heirship. The Louisiana Supreme Court in Succession of Lauga , 624 So.2d 1156 (La. 1993), struck down the first Legislative attempts to eliminate forced heirship, declaring those acts unconstitutional.

THE 1995 CONSTITUTIONAL AMENDMENTS

The Louisiana Constitution was amended on October 21, 1995. The purpose of this amendment was to authorize the legislature to enact legislation that would further impinge on the rights of forced heirs and reduce the forced portion, thereby giving more leeway to testators in Louisiana. Article 12, Section 5 of the Louisiana Constitution was amended to provide:

§5. Successions: Forced Heirship and Trusts

Section 5. (A) The legislature shall provide by law for uniform procedures of successions and for the rights of heirs or legatees and for testate and intestate succession. Except as provided in Paragraph B of this Section, forced heirship is abolished in this state.

(B) The legislature shall provide for the classification of descendants, of the first degree, twenty-three years of age or younger as forced heirs. The legislature may also classify as forced heirs descendants of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates. The amount of the forced portion reserved to heirs and the grounds for disinherison shall also be provided by law. Trusts may be authorized by law and the forced portion may be placed in trust.

Note the permissive language in the statute: The legislature in Baton Rouge was given the authority, apparently at its discretion, to classify as forced heirs descendants of any age who are incapable of taking care of their persons or administering their estates due to either mental incapacity or physical infirmity. Some of this language has been fleshed out, as we will see in a minute.

A new world dawned on June 18, 1996, the effective date of a more recent Act of the Legislature. Since that date, forced heirship looks like this:

1. All children who have not attained the age of 24 years are forced heirs.

2. All children who are permanently incapable of taking care of their person or administering their estate at the time of the death of their parent, due to a mental or physical incapacity of that particular child, are forced heirs, regardless of the age of the child.

3. A grandchild is a forced heir of his or her grandparent only if the predeceased child (the grandchild's parent) would have been less than 24 years of age at the time of the grandparent's death.

4. A grandchild whose parent has predeceased the grandparent is a forced heir if the grandchild, due to mental or physical incapacity, is permanently incapable of taking care of his person or administering his estate at the time of the death of the grandparent, regardless of the age of the grandchild.

(See Article 1493 of the Louisiana Civil Code)

What is the forced portion of a decedent's estate? The following is a useful checklist:

1. 25% of the decedent's estate, if the decedent is survived by one forced heir at the time of his death.

2. 50% of the decedent's estate, if the decedent is survived by two or more forced heirs at the time of his death.

3. The forced portion for any child is reduced to the intestate portion if the forced portion fraction would be greater than the heir's portion in the event that the decedent died intestate. This applies in situations where an individual dies leaving five or more children.

If one were to chart forced heirship according to the number of children (who are forced heirs), Article 1495 would tell us:

Always remember that the forced portion cannot exceed the heir's portion if, hypothetically, the parent died intestate. For example, if the decedent left 5 children, and only one was a forced heir, the forced portion would be the lesser of 25% and 20%, thus 20%. If the decedent left 5 children and two were forced heirs and three were not forced heirs, the forced portion would be 20% to each of the forced heirs, or 40% of the total.

SOME RANDOM COMMENTS:

(a) If a forced heir renounces his legitime, the legitime becomes disposable and the forced portion is reduced accordingly.

(b) A usufruct in favor of the surviving spouse (regardless of whether the surviving spouse is the mother of the forced heir) is the only burden that can be placed on the forced portion. (The forced portion can always be placed in trust, however)

Always remember that a forced heir's forced portion can be satisfied by life insurance proceeds. This is quite often overlooked. If the forced heir is under the age of majority, or not mature enough to handle his or her assets, then perhaps a life insurance trust would be appropriate. Placing insurance proceeds in trust is an excellent way to protect a young person against his or her immaturity.

What constitutes mental or physical incapacity such that a child is permanently incapable of taking care of his person or administering his estate? The Louisiana Courts have considered this issue only once since the forced heirship statutes were last amended, in Succession of Martinez, 729 So. 2d 22 (La. App. 5th Cir. 1999). Mary Martinez died in 1997. Mary's Will, which was confected in 1979, left everything to her spouse, Frederick. Frederick and Mary were divorced at the time of Mary's death, and Frederick was able to have Mary's Will probated and subsequently obtained a Judgment placing Frederick in possession of Mary's entire estate.

Within 6 months of the Judgment of Possession, Frederick, who was Mary's son, filed a suit asking that the succession be reopened and further alleging that he was a forced heir under Article 1493 of the Civil Code. The trial court and the appellate court ruled against Frederick.

The facts reflected the following:

1. Frederick was 33 years of age.

2. Frederick was mildly mentally handicapped.

3. Frederick received social security disability income.

4. Frederick was enrolled in the United States Navy's Incapacitated Dependent Program.

5. Frederick had difficulty with money and banking transactions.

6. Frederick could not perform more than one task at a time.

7. Frederick could not live by himself.

With all of these problems, the first impression of Frederick might be that he is a forced heir because he was permanently incapable of taking care of himself, however, the facts further showed that Frederick did have some abilities, including:

1. Frederick was socially active

2. He was a lieutenant in a Mardi Gras parade

3. He was responsible for the members of his float arriving and climbing on the float before the parade

4. He was a member of the Knights of Columbus

5. He volunteered at local church fairs and sold nacho chips

6. He was a good cook

7. He was able to clean his house

After reviewing the entire picture, the Court of Appeal found that Frederick was not a forced heir. The Court quoted from Article 1493 which stated that, in order to be a forced heir after the age of 23, one must be permanently incapable of taking care of his person or administering his estate. The Court looked to the intent of the legislature by reading a comment to Article 1493 that stated that this provision was only for "severely handicapped" persons. The Court concluded that Frederick was considered mildly mentally handicapped, but since he was not severely handicapped, he was not a forced heir.

FUTURE ARGUMENTS ON FORCED HEIRSHIP

Future arguments over who is and is not a forced heir may consider examples such as:

1. Drug addicts

2. Gambling addicts

3. Alcoholics

4. Spendthrifts

5. Persons of perfect mental health, but physically disabled

What about blind persons - are they forced heirs?

We might anticipate future litigation based on some comments made by the Legislature in enacting Act 77 of 1996. Subsection (c) of the Comments is somewhat confusing. That Comment provides, in part, that the word "permanently" was placed by the Legislature before the word "incapable" to emphasize that a temporary incapacity or infirmity, even if severe, should not apply to make an individual a forced heir. Then, almost immediately after the preceding Comment, the Legislature stated:

The Legislature also requested that these Comments note that as a factual matter a person can be permanently incapable or infirm, but on occasion have a temporary remission. It is not intended to be the policy of the Article that a mere temporary remission at the time of the decedent's death would disqualify an heir from being classified as "permanently" incapable or infirm within the new definition, provided that the condition is otherwise permanent.

In 2003, the Legislature amended Article 1493 as follows:

For purposes of this Article "permanently incapable of taking care of their persons or administring 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.

Does all of this leave us in a more certain world as to permanent incapability and whether or not an individual is a forced heir?

Inevitably, an estate will be presented to a Louisiana court (with enough assets involved) to make it worthwhile for people to litigate these issues quite intensively.

THE MARITAL PORTION - WILL IT ATTACK RETIREMENT BENEFITS?

The Louisiana civil law provides a surviving spouse who finds himself or herself in necessitous circumstances with the right to claim the marital portion of the estate of the deceased spouse. This right is found in Articles 2432 et seq of the Louisiana Civil Code, and originates from Roman law and the Spanish law in effect in Louisiana at the time of the Louisiana Purchase. This right of a surviving spouse may become more well known as retirement plans begin to gain even further value as the baby boomer generation begins to retire.

THE MARITAL PORTION - AN EXPLANATION

If one spouse dies "rich" in comparison with the surviving spouse, the surviving spouse is entitled to claim from the estate of the deceased spouse something known as the "marital portion." Louisiana Civil Code Article 2432. The loose language found in the Civil Code is only relative in that a spouse could die with $200,000 of assets and still be considered "rich" if the surviving spouse has less than $40,000 of assets. Most Louisiana courts will award the survivor the marital portion when the relative value is in the range of 5 to 1 or greater.

The marital portion is applicable to every married couple in Louisiana, even if a marriage contract was in effect between the parties. Succession of Monroe, 494 So. 2d 336 (4th Cir. 1986).

How is the marital fourth computed? Article 2434 provides some guidelines:

There is a maximum limit, however, on the marital portion that has been in effect since 1987: The marital portion can never exceed $1 million, as per the clear provisions of the Civil Code, Article 2434.

Art. 2434. Quantum The marital portion is one-fourth of the succession in ownership if the deceased died without children, the same fraction in usufruct for life if he is survived by three or fewer children, and a child's share in such usufruct if he is survived by more than three children. In no event, however, shall the amount of the marital portion exceed one million dollars.

CHARGES AGAINST THE MARITAL PORTION

Louisiana law provides that the marital portion that might be due a surviving spouse is reduced by :

1. Any legacy left to the surviving spouse.

2. Payments due to the surviving spouse as a result of death (such as social security benefits and insurance payments).

Louisiana Civil Code Article 2435.

EFFECT OF THE MARITAL PORTION ON QUALIFIED RETIREMENT PLANS

There is no Louisiana decision interpreting the marital portion vis-a-vis a qualified retirement plan. Some guidelines can be delineated from previous litigation over the marital portion, however. For example, it is fairly clear that the assets that a surviving spouse may have should not be deducted from the marital portion. Succession of Monroe, 494 So. 2d 336 (La. App. 4th Cir. 1986), writ denied, 498 So.2d 16 (La. 1986). In the Monroe decision, the surviving wife had assets valued at $60,000.00, most of which were gifts from her deceased husband. She also received insurance proceeds and social security benefits as a result of her husband's death. The husband's estate was valued at $630,000.00, and the Court had no trouble concluding that the husband died "rich" and the wife was entitled to the marital portion (in usufruct, since the decedent had 3 children). The Court concluded that insurance proceeds are deductible in computing the marital fourth but certain inter vivos gifts that the wife received from her husband were not deductible in making these calculations.

No matter how well educated or experienced the survivor is, the future earnings capacity of a surviving spouse should not be considered in calculating the amount of the marital portion. Succession of Mullin v. Mullin, 631 So. 2d 647 (La. App. 3rd Cir. 1994). The Mullin decision also held that the value of legacies left to the wife by the husband in his Will should be considered as debits to her claim for the marital portion.

In Succession of Caraway, 639 So. 2d 415 (La. App. 2nd Cir. 1994), a 64 year old male married his 35 year old companion and died several years later. The husband's estate amounted to $191,000 and change, and, since the surviving spouse had very little, the court awarded her 1/4 of that amount or slightly more than $47,000, in usufruct as her marital portion. Social security payments to the surviving spouse were considered in calculating the marital portion, and were debited to the spouse's account. The trial judge went so far as to compute past and future payments from social security to determine just how much reduction should be made to the wife's claim. By using the American Experience Mortality Tables in calculating the wife's present life expectancy, the present value of those payments were calculated to be $144,300, an amount far in excess of the marital portion. Thus, in this particular fact situation, the husband did not die "rich" in comparison to the wife, and the wife was not entitled to the marital portion.

Even if there is a marriage contract in effect, properly confected and recorded, prior to the marriage, the surviving spouse is still entitled to the marital portion if the facts fall into place. Norsworthy vs. Succession of Norsworthy, 704 So. 2d 953 (La. App. 2nd Cir. 1997).

Will the courts take an attitude toward the marital portion similar to the "jealous" attitude taken by the federal courts in the Boggs decision? Consider this scenario:

Husband dies leaving a qualified retirement plan with a value of $1,800,000, a home valued at $250,000, miscellaneous assets valued at $100,000, and no debt. If the husband died with no children surviving him, and if the wife had little or no assets, but for some reason, husband left the wife only $100,000 in his Will (let's assume that this was a remarriage of two previously married persons only two years before the husband passed away, and there was no community). What is the wife entitled to? The normal exercise would be to look at the net estate of $2,150,000, and award the wife 25% of that figure, or $537,500. Assume for the sake of our example that the husband left the bulk of his estate to collaterals or other friends and not to the wife. Would the marital portion override a beneficiary designation made by the husband with the trustee of his qualified plan? There seems to be no answer at this time.

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