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Louisiana Estate Planning Under Napoleonic Code Is A Bit "Different"

Aug 18, 2007
Louisiana law provides that without a will, separate property is inherited in a unique inheritance order unlike that in most other states. That order is somewhat complicated, and its unusual provisions often come as an unwelcome, devastating surprise to the surviving family.

If one is married but has no will, ones line of inheritance in Louisiana is the same as that of a single person. That is: Actual usage (usufruct) of funds and property are given to the parents of the deceased; the deceased's siblings are granted naked ownership. If the deceased's parents die first, then the siblings inherit full ownership with usage rights.

Where's the wife or husband in all this? Out in the cold, without a will specifying his or her inheritance. Children are somewhat better protected in the event of no will - but a spouse inherits nothing at all beyond community property ... and "community property" is not defined in ways most people assume it is; many valuable assets may be "separate property," instead, and that spells danger for the surviving spouse.

By legal definition, separate property is that which is acquired prior to a marriage; acquired by inheritance or donation to one spouse individually; or acquired by one spouse with separate funds or with separate and community funds where the community funds are very small in comparison to the separate funds.

How does that legalese translate to a real-life situation? Well ...

Say two young married men start buying business property together. Their wives have no part in these acquisitions and each wife signs off as an "intervener" (that is, they declare and agree that the property is being purchased by their husbands with separate funds, and is not part of the marital property). Now, say that both men are killed in a tragic accident and, being young, healthy and robust, they've never thought to prepare wills.

This "separate property" is not part of community property - even though it was purchased after the marriage - and neither wife will inherit. If neither man has children, the inheritors will be the parents or the siblings of the deceased. If the men do have children, the children will inherit naked ownership, but not usage rights. In either event, the wives - the mothers of those children - do not inherit either naked or usufruct rights, absent a will stating anything to the contrary.

For another example, suppose you inherit a camp or farmland in Louisiana, and even though you were married twice, you never had children of your own. Your second wife had children with her first husband, but while you raised them and loved them as your own, you never did legally adopt those children. If you die before executing a will, the camp and farmland are separate property (because you inherited them individually, not as community property).
Your wife cannot inherit your separate property unless you leave it to her in a will and, in this instance, the children you've loved and raised as you own can't inherit, either, since they never were legally adopted. Absent a will stating otherwise, your parents, if living, inherit the separate property; if your parents are deceased, your siblings inherit.

Clearly, the peculiarities of Louisiana law necessitate anyone with property to leave take the time to file a properly drafted will with trust provisions to ascertain that his/her family is cared and provided for according to his/her wishes. As it relates to separate property in Louisiana, there is no protection for a spouse or significant other without a will - but a correctly drafted one will insure their protection in the event of your death.
About the Author
Louisiana estate planning with a correctly drafted will insures your family's protection. With over 30 years of experience, the attorneys at Melcher's Law Firm use their knowledge and the client's circumstances to determine the type of trust or will to recommend. http://www.melcherslawfirm.com/.
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