What Is Forced Heirship?

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DEFINITION

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.

Definition and Examples of Forced Heirship

Under this law, you're not free to dictate who inherits your estate, at least not entirely. For example, if you had four children, a house, and 20 acres of land, you legally couldn't leave it all to someone else if any of your children were younger than 24 or met other conditions.

How Forced Heirship Works

The term "forced heirship" is not used anywhere in the U.S. except in Louisiana. This state has a law that prohibits disinheriting a child who is 23 years old or younger, is permanently disabled or incapacitated, or cannot otherwise care for themselves.

Forced Heir Portions

In Lousiana, an estate is divided into two portions—the amount due to the forced heir(s), called the "legitime," and a portion called the "disposable portion," which follows intestacy laws or is distributed per the deceased's wishes.

The legitime, or forced portion, is 25% of the estate if there is one child. The rest goes to the disposable portion. If there is more than one child, the forced heirs receive equal portions of 50% of the estate.

Two or more surviving children must share half as collectively forced heirs. In addition, there are some legal grounds for disinheritance, and most involve violence against the parent.

Insurance and retirement benefits are generally not included in the forced portion of an estate. If they are included for any reason, any portion paid to the forced heirs counts toward the forced portion of the estate.

Representation

The forced heir law in Louisiana also dictates that if a forced heir dies before the decedent and that heir had a child, the child would inherit that heir's portion only if the decedent were to die before their child would have reached 24 years.

For example, imagine your son had a child at age 21 and was then tragically killed in a car accident. You survived your son, and his child is now the forced heir, no matter how old they are when you pass away. In the same scenario, if you died one year after your son, his child would be the forced heir and receive his portion of your estate, because you died before your son would have reached 24 years.

There are many other complex scenarios and circumstances that surround forced heirship—it's best to consult an attorney if you're planning your estate and live in Louisiana or think you might have a legal interest in an estate.

If your son died after the age of 24, his child cannot be a forced heir unless they are permanently mentally or physically incapable of managing their estate and caring for themselves.

Limitations

It's important to understand that not many people will fall under the forced heir category. To summarize the points made previously, a forced heir:

  • Has a parent who died before the heir reached the age of 24, or
  • Is permanently disabled mentally or physically such that they cannot care for themselves, or
  • Is someone whose grandparent died before the parent reached 24 years, and whose parent died before reaching age 24

Alternatives to Forced Heirship

While forced heirship cannot be bypassed, there are specific cases in which you can restrict an estate—usufruct, legitime trust, and survivorship requirement.

Usufruct

You can establish usufruct—a limited right to use the estate you leave behind. Typically, the usufruct is granted to spouses over the forced portion on an estate so that the spouses are free to inhabit and use the estate.

Usufruct doesn't absolve the forced heirship—the heirs still own their portions of the estate; however, the usufructuary can use the forced portion until the usufruct expires or they pass away.

The forced heirs are called the "naked owners" and have no rights to the estate being used by the person granted usufruct, other than ownership.

Forced heirs can opt out of a forced heirship. If a forced heir does that, their portion reverts to the disposable portion—it doesn't go to other forced heirs, if there are any.

Legitime Trust

The forced portion of an estate can be left in a trust—this is called a "legitime trust." For the trust to be legal, it needs to:

  • Distribute all income to the forced heir for education, health, support, or estate maintenance purposes.
  • Have no other conditions applied to the estate except usufruct or interests of a primary beneficiary
  • Expire upon the death of the forced heir
  • Distribute all principal to the forced heir when the trust terminates

Survivorship Requirement

Common in many estate plans, a survivorship requirement states that the beneficiary must live for a specific time after the grantor dies, to receive any inheritance. Under successional laws that include the forced heirs, the decedent can create a provision for their estate in which the forced heir can only receive their portion if they survive for six months after the grantor's death.

Key Takeaways

  • Forced heirship is a legal provision that restricts how a person can bequeath their estate under particular conditions.
  • Louisiana is the only state to practice forced heirship in the U.S.
  • Forced heirs must have parents who died before the heirs reached the age of 24 or must have a permanent disability or cannot otherwise care for themselves.
  • Forced heirship follows the legal concept of representation.


Article Sources

  1. Loyola University New Orleans College of Law. "Successions," Page 804.

  2. Louisiana Civil Justice Center. "Probate & Succession in Louisiana," Page 4.

  3. Louisiana State University. "Louisiana Civil Code." Section 8.

  4. Legacy Estate & Elder Law of Louisiana. "Forced Heirs and Heirship Under Louisiana Law."

  5. Loyola University New Orleans College of Law. "Successions," Page 805.

  6. Louisana State University. "Louisiana Civil Code," Chapter 2.

  7. Lousiana State University. "Louisiana Civil Code," Section 4.