In Louisiana, children under 24 and permanently disabled children are forced heirs. They can demand a "forced share" of their parents' estates, even though their parents may have left them less by Will. Did you know that a surviving spouse may have rights like a forced heir? If one spouse dies "rich" in comparison to the surviving spouse, the surviving spouse is entitled to claim a "marital portion" from the deceased spouse's succession.

Prior to 1980, the marital portion was available only if the surviving spouse was in "necessitous circumstances." Under current law, the surviving spouse's financial circumstance is not material - all that need be shown is that the deceased spouse was rich in comparison to the survivor. "Rich" is a relative term. Louisiana courts ordinarily award the martial portion when the comparison of assets show a ratio of five to one or more. Thus, a deceased spouse with an estate of $2 million would be rich compared to a survivor with assets of $300,000. A deceased spouse with an estate of $80,000 would be rich compared to a survivor with assets of $15,000. The survivor's future earning capacity and any support the survivor may expect from others are not taken into account in determining the survivor's financial situation.

In the typical marriage most, if not all, of the property is community property owned one-half (1/2) by each spouse. Therefore, there is little, if any, difference in the assets of the spouses. However, if one of the spouses inherits substantial separate property or if one spouse has substantial separate property prior to marriage, a disparity in assets can occur. It is common to find a disparity in assets in remarriage situations where one spouse enters the remarriage with substantial separate property and the spouses may enter into a pre-nuptial agreement so that Louisiana community property laws will not apply to property acquired during the marriage.

If a spouse dies without a Will leaving children, the children inherit the spouse's estate. A surviving spouse is granted a usufruct by operation of law over the deceased spouse's share of the community, but not a usufruct over the deceased spouse's separate property. Depending upon the disparity in financial condition, the surviving spouse could claim the marital portion. The survivor could claim the marital portion even when the deceased spouse leaves a Will, if the survivor does not receive at least an amount equal to the marital portion as a result of the spouse's death. A spouse cannot waive, renounce or alter the marital portion by agreement either before or during the marriage, but can renounce the marital portion after the death of his or her spouse.

The amount and nature of the marital portion vary depending upon whether the deceased spouse has surviving children (or grandchildren from predeceased children). The marital portion is one-quarter (1/4) of the deceased spouse's assets in full ownership if the deceased spouse has no children. If the deceased spouse has three or fewer children, the marital portion is a lifetime usufruct over one-quarter (1/4) of the deceased spouse's estate. If the deceased spouse has more than three children, the marital portion is a usufruct over a child's share. However, the amount of the marital portion cannot exceed $1 million. The marital portion may be placed in trust by the deceased spouse.

The marital portion is reduced by any legacy which the spouse leaves the survivor as well as any payments due to the survivor as a result of the spouse's death. Benefits payable to the surviving spouse from social security, retirement plans and life insurance on account of the spouse's death reduce the marital portion.

If you are married and die "rich" compared to your spouse and leave all or a substantial portion of your estate to others, your surviving spouse could challenge your Will by demanding the marital portion. Proper planning can avoid costly litigation. You can satisfy the marital portion through special bequests to your spouse, including life insurance and retirement benefits.

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