What Is Forced Heirship?

Definition & Examples of Forced Heirship

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Forced heirship is a legal concept that's recognized at least to some extent in one state—Louisiana. It prohibits a person from disinheriting certain kin, most commonly their spouse, children, and grandchildren.

What Is Forced Heirship? 

Forced heirship is far more common in European countries such as France, Germany, Italy, and Spain. Japan, Russia, and some Latin American countries also recognize forced heirship, and it's common in the Muslim religion. A person is not free to dictate who inherits his estate under forced heirship laws, at least not entirely. Some forced heirship laws go beyond immediate family to include other blood relatives as "protected heirs."

How Forced Heirship Works

The term "forced heirship" is not used anywhere in the U.S. except Louisiana. This state has a law that prohibits disinheriting a child who is younger than age 24 or who is permanently disabled or incapacitated. Grandchildren are considered forced heirs if their parent died before the decedent, provided they are under age 24 or incapacitated at the time the decedent dies. These individuals are assured of receiving at least some share of the decedent's estate.

In Louisiana, if there is one child, they are generally entitled to 25% of your estate as a forced heir.

Two or more surviving children must share half as collective forced heirs. IRAs, 401(k) accounts, and life insurance are not counted as part of this calculation. There are some legal grounds for disinheritance, and most involve violence against the parent.

Louisiana's forced heirship law does not extend to spouses. It doesn't have to—the state has another law for them. 

Forced heirship laws vary widely among the countries that recognize them. In some, the deceased person cannot alter the forced heirship disposition of their estate in any way. In others, they can direct that a portion of their estate can pass outside of the forced heirship rules as long as a portion is left to protected heirs. Forced heirship can be avoided in some countries by establishing trusts or foreign corporations to own property.

Alternatives to Forced Heirship

Although only Louisiana recognizes forced heirship, virtually all other states have some legal means in place to ensure that a spouse cannot be disinherited. The exception is Georgia, and Georgia does have a law in place that ensures a surviving spouse a living allowance from the decedent's estate for a limited period.

Elective Share

The majority of states provide for elective shares in their laws.

"Elective share" is a term used to describe the right of a surviving spouse to take a share of their deceased spouse's estate. They are free to either accept the terms of their spouse's will or "take against it" and accept a statutory share of the estate instead.

For example, Joe's will might leave Sally $500. Joe's estate is worth $500,000, so Sally can either accept the $500 he left her or notify the court that she elects to receive a far more significant share of the estate instead. The exact share would depend on the state's laws, and they can vary, but it's often at least one-third of the entire estate.

Community Property

Nine states follow community property law, including Louisiana. The others are Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington, and Wisconsin.

Each spouse has an equal 50/50 ownership right to everything acquired during the marriage.

A spouse has no right to leave the other's share of community property to anyone else in their estate plan because it's technically not theirs to give away.

If Joe and Sally had lived in a community property state and their marital estate was worth $500,000, Sally would automatically get her $250,000 share.

However, Joe is free to leave his $250,000, as well as any separate property he acquired before the marriage, to anyone he likes.

Key Takeaways

  • Forced heirship is a legal provision that restricts how a person can bequeath their estate.
  • It is more common in other countries, and the state of Louisiana is the only state to practice forced heirship in the U.S.
  • Some states have a community property law that automatically divides an estate between spouses.