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November 01, 2014

Forced Heirship - Does It Still Exist?

AUTHOR:      Linda Melancon
PUBLISHED:  September 06, 2005

Many of you probably remember that a constitutional amendment was passed several years ago (1995 to be exact) that purported to eliminate forced heirship in Louisiana. For those not familiar with the concept of forced heirship (or those from other states who have never heard of forced heirship), it is a concept that provides that all of your children have a right to a portion of your estate upon your death. Prior to the constitutional amendment, there were limited circumstances under which a child could be disinherited. Absent one of those circumstances, if you did not provide a child with his or her forced portion, he or she could sue to claim it. After the passage of the constitutional amendment abolishing forced heirship, many people believe it no longer exists in Louisiana, but that is not the case.

The constitutional amendment in 1995 abolished forced heirship as a constitutional right, but provided the legislature could make laws relating to forced heirship. And, in 1996, new legislation regarding forced heirship was enacted. Forced heirs are now classified as descendants of the first degree (your children) who at the time of your death are twenty-three years of age or younger. Also, descendants of the first degree of any age, who because of mental or physical infirmity, are unable to take care of themselves or their estates are classified as forced heirs. A grandchild can also be a forced heir if that grandchild’s parent is deceased and the deceased parent would have been twenty-three years of age or younger at the time of your death or if the grandchild’s parent is deceased and the grandchild is incapable of taking care of themselves in the manner described previously.

So, what does it mean to be a forced heir? First, as was previously the law, a forced heir cannot be deprived of a portion of the estate unless there is just cause to disinherit him. Just causes for disinhersion include a child striking a parent, a child causing a parent cruel treatment or grievous injury, a child attempting to take the life of a parent, a child accusing a parent (without reasonable cause) of committing a crime, a child using an act of violence or coercion to prevent the parent from making a will, a minor child marrying without consent, a child being convicted of a crime for which the punishment is life imprisonment or death, and the child failing to communicate with the parent for two years prior to execution of the will. As you can see, the causes for disinheriting a child are few.

Assuming disinheriting your forced heirs is not possible, you must reserve at least one-fourth of your estate for the forced heir if there is only one forced heir and one-half of your estate if there are two or more forced heirs. With proper planning, however, there are ways that your spouse can still be given access to the forced portion of your estate if you so desire. The forced portion can be subject to a usufruct in favor of your spouse which will give him or her the right to use the estate assets even though the ultimate ownership belongs to the forced heir. Also, the forced portion can be placed in a trust and your spouse can be given the right to receive all of the income from the trust during your spouse’s lifetime. This trust can continue for the forced heirs lifetime, subject to certain laws regarding its disposition upon the forced heir’s death.

In addition to the forced portion, a forced heir has the right to demand collation. Collation is a concept similar to forced heirship which gives a child or grandchild succeeding to property the right to demand that any gifts given during lifetime be returned to the mass of the succession to be distributed equally with the other assets in the succession. This concept was based upon the premise that parents always intended to give everything equally to their children so the return of all gifts was required to equalize the distribution. Again, the only ones entitled to collation are those who are now classified as forced heirs. And, the right to collate now only exists for gifts given within three years of death.

When planning for a family with young children, careful attention must be paid to the details of how the forced portion will be distributed. Often, it is in the child’s best interest to place that forced portion in a trust so the child does not receive it until he or she is old enough to manage it wisely. And, for families with special needs children, it is imperative to place the forced portion in a special needs trust so that child will not lose other government assistance that might be available.

As with many areas of estate planning, what seems to be is not really the case. Our state’s voters passed a constitutional amendment in 1995 to abolish forced heirship, but it still remains in limited circumstances. If your family fits in those circumstances, it is important to seek legal advice on how to address the forced heirship issue to prevent unintended consequences upon your death.

 
Ms. Melancon has engaged in the practice of law in Ascension Parish for the last eight years. The primary focus of her practice is estate planning and estate administration. For more information or to attend an upcoming estate planning seminar, call her office at 744-0027.


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