The State of Louisiana is unique in that its laws provide for forced heirship. When planning an estate in Louisiana, a basic understanding of forced heirship and its effects is crucial. The following information is from John’s book, Louisiana Retirement and Estate Planning. To order a copy of his book, click here.

Forced heirship provides certain rights to the forced heirs including: the right to claim a forced portion (the legitime) of the decedent’s estate, the right to nullify certain lifetime gifts, and the right to compel collation (equalization) of certain lifetime donations. In 1996 the final modification to the rules of forced heirship were made and has defined forced heirs as:

1. All children who have not attained the age of 24 are forced heirs.
2. All children (of any age) who, at the time of the death of their parent, are permanently incapable of taking care of their person or administering their estate, due or mental or physical incapacity, are forced heirs.
3. Grandchildren are forced heirs of their grandparents if the grandparent’s child (the grandchild’s parent) would not have reached the age of 24 at the time of the grandparent’s death.
4. Grandchildren whose parent has predeceased the grandparent are forced heirs of their grandparent if the grandchild is permanently incapable of taking care of their person or estate, due to mental or physical incapacity, at the time of the grandparent’s death.

A descendant who is permanently incapable of taking care of their person or administering their estate is defined as a descendant 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 person or administering their estate in the future.

The Forced Portion

Generally the forced portion is 25% of the legitime if there is one forced heir. If there is more than one forced heir, the forced portion is 50% of the legitime. A forced heir’s share can be no more than the share he would have received as an intestate heir. For example, if there are five children and one is a forced heir, the forced portion is one-fifth of the legitime.

What Does All of This Mean?

Although forced heirship does not prevent you from making a will, it may limit how your estate is distributed. At the time of the parent’s death, children under the age of 24, incapacitated children, and grandchildren in certain situations are forced heirs and have a claim against the forced portion of the estate. Keep in mind that all children are potentially forced heirs in the event of future disability. After the legitime is satisfied, the remainder of the estate (the disposable portion) may be distributed in any lawful manner. In addition, there are various transitional rules governing the application of forced heirship laws depending on the effective date of the wills and the date of the decedent’s death.

Property Exempt from Forced Heirship

Forced heirship does not apply to all property, however. Inter vivos donations (gifts made during the donor’s lifetime) three years prior to death are excluded as well as retirement plans, individual retirement accounts, insurance proceeds on the decedent’s life and premiums paid for such insurance.

A usufruct to the surviving spouse (whether or not the surviving spouse is the parent of the forced heir) over the legitime does not impinge upon the legitime. So a surviving spouse may be given the usufruct for life over property which is an heir’s forced portion. In addition, the legitime may be placed in trust, even for the lifetime of the forced heir.

The legitime is in terms of quantum or value. Thus, a forced heir is entitled to receive property of value at least equal to their legitime. The testator may select assets to satisfy the legitime or he may delegate this authority to the executor.

Another option to consider when planning around the forced heirship law is that life insurance proceeds may be used to satisfy a forced heir’s legitime. If the forced heir is unable to properly manage the insurance proceeds due to incapacity or immaturity, the proceeds should be placed in trust until the forced heir is capable of managing their affairs.

What are a Forced Heir’s Rights?

A forced heir must assert their right to the legitime if they have not received property sufficient to satisfy their inheritance rights under forced heirship; however, a forced heir may honor the testator’s wishes by not asserting their rights as a forced heir. If a forced heir’s legitime is “impinged”, the forced heir may assert their right of reduction. Generally, forced heirs may assert their right to reduce excessive donations to the extent necessary to eliminate an impinged legitime for up to five years.

A descendant who is permanently incapable of taking care of their person or administering their estate is defined as a descendant 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 person or administering their estate in the future.

The Forced Portion

Forced heirs are entitled to the forced portion (the legitime). Generally, the forced portion is 25% of the legitime if there is one forced heir. If there is more than one forced heir, the forced portion is 50% of the legitime. A forced heir’s share can be no more than the share he would have received as an intestate heir. For example, if there are five children and one is a forced heir, the forced portion is one-fifth of the legitime.

Collation

Louisiana law assumes parents wish to treat their children equally. Collation is the actual or constructive return to the succession of certain donations by the decedent to the other children. This right is granted to children of a decedent who qualify as forced heirs. As the law currently stands, collation only applies to gifts made within three years of death and applies to the date of gift value. Collation is required but may be dispensed with by a properly drafted will or authentic act making collation inapplicable.

Avoiding Disqualification From Governmental Entitlement Programs

If a disabled child is receiving or may receive governmental financial assistance, a Special Needs Trust should be considered to prevent the child from being disqualified from governmental entitlement programs. Because a disabled child is a forced heir at any age, simply excluding the disabled child from the will is not enough. The forced heirship rules will override the will and the disabled child will inherit the forced portion regardless of the parent’s wishes. The amount of the forced portion inherited may exceed the income and resource limits to retain qualification for the government assistance. A Special Needs Trust for the forced portion of a disabled heir can prevent disqualification of governmental entitlement programs. A Special Needs Trust provides resources to the disabled heir to pay for needs other than food, shelter and necessary expenses as provided for by the governmental entitlement program. The Special Needs Trust may pay for travel, entertainment, recreational equipment or other items or services not deemed as necessary expenses. So long as the Special Needs Trust does not pay for necessary expenses, the disabled heir will not be disqualified from governmental entitlement programs regardless of the amount of assets in the Special Needs Trust.

Contact lawyer John E. Sirois in Metairie at 985-580-2520 if you have questions about community property or planning your estate. Click on the Estate Planning Checklist to begin planning your estate. You may also e-mail him for a consultation.