Understanding Forced Heirship in Louisiana

One of Louisiana’s most particular, and misunderstood, laws is a concept known as “forced heirship.” In simple terms, it prevents young and/or disabled children from being disinherited by their parents. Under this law, parents are required to leave a portion of your estate to certain children, regardless of their personal wishes.

Who are Forced Heirs?

In order to qualify as a forced heir, the child must be a biological or legally adopted child of the deceased, not a grandchild, niece or nephew, or step-child (unless legally adopted), and fit one of these two categories:

1. Children under 24: Any child under the age of 24 at the time of the decedent’s passing. Note that this does not mean “minor” children, as the age of majority in Louisiana is 18.
2. Children of Any Age with Disabilities: Any child, regardless of age, that has a mental or physical disability that renders them permanently incapable of caring for themselves, as of the time of the decedent’s passing.

What Portion of the Estate Must Go to Forced Heirs?

The portion of the estate that must be left to forced heirs depends on the number of forced heirs you have:

1. One Forced Heir: If you have one forced heir, they are entitled to 25% of your estate.
2. Two or More Forced Heirs: If you have two or more forced heirs, they are collectively entitled to equal shares of 50% of your estate. For example, if you have 2 forced heirs, they would each be entitled to 25% of your estate; but if you have 5 forced heirs, they would each be entitled to 10% of your estate.

Can You Disinherit a Child in Louisiana?

You may only disinherit a child in Louisiana by executing a will, in one of the following circumstances:

1. If the child has physically attacked the parent, if he or she has actually struck the parent. A mere threat is not sufficient.
2. If the child is guilty of cruel treatment of the parent, inflicting grievous injury against a parent, or any other crime for which the parent was a victim. This does not require a conviction, but may need to be proven if the disinherison is challenged.
3. If the child has attempted to take the life of the parent.
4. If the child, without any reasonable basis, has accused a parent of committing a crime for which the law provides that the punishment could be life imprisonment or death.
5. If the child has used any act of violence or coercion to hinder the parent from making a testament.
6. If a minor child gets married without the consent of the parent.
7. If the child has been convicted of a crime for which the law provides that the punishment could be life imprisonment or death.
8. If the child has failed to communicate with the parent without just cause, for a period of two years, after the child turned 18 and knew how to contact the parent. This does not apply if the child was on active duty in any of the military forces of the United States at the time.

For any of these conditions, the law requires clear and convincing evidence for disinheritance to be upheld in court. It is important to consult with an attorney so that you can preserve the necessary proof of any such disinherison along with your will.

Planning Your Estate with Forced Heirship in Mind

Given the constraints of forced heirship, it’s crucial to approach estate planning with careful consideration and legal guidance. Here are some steps you can take:

1. Consult with an Estate Planning Attorney: An attorney who specializes in Louisiana estate law can help you understand your obligations under forced heirship and develop a strategy that aligns with your wishes while complying with the law.

2. Consider Alternatives: While you may not be able to completely disinherit a forced heir, you can still control how the rest of your estate is distributed. You might consider setting up trusts, making donations, or using life insurance policies to manage the distribution of your assets.

3. Document Your Wishes Clearly: Ensure your Last Will and Testament is clear, detailed, and legally sound. Any attempts to disinherit a forced heir must be explicitly stated and supported by evidence.

4. Discuss with Your Family: Open communication with your family about your estate plans can help manage expectations and reduce potential conflicts after your passing.

Conclusion

In Louisiana, the concept of forced heirship can significantly impact your estate plan. While the law aims to protect vulnerable heirs, it also places constraints on your testamentary freedom. However, with careful planning and the guidance of an experienced attorney, you can navigate these complexities and create an estate plan that honors your wishes and complies with Louisiana law.

If you have questions or need assistance with your estate planning, don’t hesitate to reach out to the attorneys at Ciolino & Onstott at any time. Taking the time to plan thoughtfully now can provide peace of mind for you and your loved ones in the future.