An Overview of Inheritance Laws in Louisiana
Louisiana is a state of contrasts. It is unique in many ways, owing to its French and Spanish colonial roots. Its legal system even draws from both the Napoleonic Code and English common law. Thus, inheritance law in Louisiana has aspects that set it apart from other states.
The major inheritance law concepts that apply in Louisiana are community property and forced heirship. The issue of community property comes into play when a Louisiana sibling inherits from a decedent’s forced estate. Pursuant to Louisiana law, community property pertains to everything acquired during a marriage by "the efforts of both spouses during marriage," with some exceptions . In this case, the wife and husband would each have a ½ ownership interest in their assets, but only during their marriage. Forced heirship deals with a child’s inheritance, including an adult child, who has survived the decedent-sibling. In contrast to common law, for instance, Louisiana forces decedents to leave a portion of their estate to their children. At most, the forced heirship portion of the forced estate is reserved for the descendants of the decedent, unless there are no descendants.
Intestacy and Heirs: Rights of Siblings
Siblings are the next in line for Louisiana’s laws of intestate succession. If there are no children, a spouse, or parents, then the siblings will inherit the estate. An estate passes to the decedent’s brothers and sisters in equal shares. If any of the siblings have died before the decedent, then that deceased sibling’s share passes to the living siblings and to the children or other descendants of that deceased sibling.
In the case of a deceased sibling, the degree of consanguinity is irrelevant. Therefore, if a decedent is survived by three siblings (a brother, a step-brother, and a half-brother), the estate is divided equally between the three siblings (with no distinction). If there are no surviving siblings, the estate passes to the decedent’s nieces and nephews (the children of the decedent’s deceased siblings), in equal shares.
Half-blood siblings are entitled to inherit on an equal basis with full-blood siblings. For example, if the decedent is survived by three full-blood siblings and one half-blood sibling, the estate would be divided into four equal shares, and each of the surviving siblings receives one such share. Similarly, if the decedent is survived by one full-blood sibling and three half-blood siblings, each sibling would receive one-fourth of the estate.
Unlike under community property laws, the intensity of the blood relationship (e.g., first cousins, second cousins, first cousins once removed, etc.) does not matter for succession purposes. However, Louisiana law excludes certain people from inheriting as siblings or cousins, including ancestors of a former spouse of the decedent, step-siblings more than three years younger than the decedent, a divorced former spouse of the decedent, and any descendant or collateral relative of the decedent who is born out of wedlock or who is the illegitimate child of another person, unless the children’s mother or father married each other before or after the birth of the child.
Inheritance among Siblings in the Absence of a Will
Having a will is significant when it comes to sibling inheritance. Whether the decedent is blood-related or a half-sibling has no bearing on whether an inheritance proceeds according to intestate succession laws as governed by the Louisiana Civil Code. The Louisiana Civil Code states that the decedent’s children, including siblings if the decedent has no children, are next in line to inherit. However, if the decedent executed a valid will, the terms expressed within must be followed.
A will alters the general rules of intestate succession to some extent in that it allows a person to express their departure wishes in a way that they could not while alive. It can include detailed articulations of how a person wishes his/her assets to be divided amongst surviving family, friends and even organizations of particular importance. Regardless of what a testator expresses in his/her will, only certain individuals, such as siblings, have the right to lawfully challenge the terms therein.
If a will is found to be invalid, regardless of the reason – failure to comply with formal will requirements, improper execution of the will, the ineligibility of the testator, or some other factor – or if it fails to revoke a prior will, then the rules of intestate succession apply. In Louisiana a formally executed will that complies with all requirements will operate to revoke any prior wills. If no will exists or if a will was invalidated, a decedent’s blood siblings and/or his/her legally adopted siblings inherit the decedent’s estate according to laws of intestate succession. Generally they would inherit in equal shares.
Forced Heirship and their Impact on Inheritance among Siblings
Louisiana law recognizes the intuitively obvious idea that parents ought to be obliged to provide for their children. Consequently, Louisiana’s forced heirship laws impose an obligation on the parent who dies first – or the survivor of two spouses, if both die in a common accident – to support the children, but with limits. Louisiana Civil Code articles 1493-1494 describe the retired head of a household as owing a duty of support during his or her living years, just as children owe the same duty to the head of household during his or her life. When the head of household dies, however, the duty of support ends, and is replaced by a right among the children to receive a share of the property of the deceased head of household.
The code does not expressly impose the right of support on the unmarried brother or sister of the head of household, although a Louisiana court might recognize a claim among siblings for support under limited circumstances (relatives other than children) . But clearly, the sibling’s estate is not under a duty to support the head of household, and cannot be made liable for a child’s support absent specific legislation.
As for sibling inheritance rights, traditional legal opinions generally confine Louisiana’s forced heirship law to descendants, although some Louisiana law professors and some courts would include within its purview the shares of the property of the deceased parent, grandparent or sibling that would go to the children of that parent, grandparent or sibling. In other words, absent direct descendants of the deceased, the question becomes what did the parent, grandparent or sibling own? The answer may determine whether forced heirship applies to deny a brother or sister any interest in that property.
Litigation and Disputes between Siblings
When it comes to inheritance, some scenarios inevitably lead to conflict. These contradictions range from simple misunderstandings about the balance of a parent’s estate to severe legal disputes where siblings contest the validity of a parent’s will and whether or not it should be honored by an executor or administrator of their deceased parent’s estate.
Again, there are different options available when an estate goes into succession. In Louisiana, there are testate and intestate successions. Testate means a person died with a valid will. Intestate means a person died without a valid will. If a will is found to be valid upon the opening of succession, then a judicial proceeding is not required. If a will is found to be valid upon the opening of succession, then a court must decide the validity of the will and appoint an executor or administrator.
During the judicial succession proceedings, issues may arise regarding the will and the legal rights of the beneficiaries and/or heirs under the law.
Some common issues arise when there is a perception of unequal distribution of property among siblings, an unequal distribution of property among the children of the decedent, an issue with the value of the property or issue regarding whether the deceased parent could disinherit a child. Contesting a will is a serious matter in Louisiana.
Parents in Louisiana can disinherit a child, but a testator must follow certain steps in order to insure that the disinheritance is enforceable. Disinheritance must be made in a valid will and the decedent must clearly state in the will that he or she wishes to disinherit the child.
It was also illegal in Louisiana to disinherit a child for the following reasons:
- A child who physically or emotionally abuses his or her parent.
- A child who refuses to take care of a parent.
- A child who refuses to contact a parent.
- A child who refuses to provide for a parent.
- A child who refuses to offer necessary financial support to a parent.
- A child who refuses to honor a parent’s wishes.
- A child who conspires to kill his or her parent.
While parents can legally disinherit children through a will, that disinheritance may not be valid for any of these reasons even if the children fail to demonstrate any of the activities listed above.
The Process for Siblings to Preserve their Inheritance Claims
In Louisiana, the steps that siblings should take to ensure that they receive their inheritance from the decedent can vary based on each unique situation. However, proactive measures include drafting a will and other estate planning documents, as well as simply talking to your siblings to gain a clear understanding of each sibling’s intentions.
Even though it may seem odd to consider a will as a prerequisite for siblings to inherit from the deceased parent, it is not unheard of for children to remove siblings from their will. To avoid this, siblings can take pro-active steps to ensure that they receive what they believe they are rightfully owed. For those siblings who are cut out of the will, a few more steps may be necessary to secure their inheritance.
The decedent may have excluded siblings from their will or simply left the will blank to ensure that the intestacy laws will govern their estate. In such case, siblings should consult with an attorney to determine whether they are heirs under Louisiana law .
Similarly, siblings should consider preparing a Bill of Partition for any jointly owned real estate. A Bill of Partition simply divides the real estate into segments based on the fair market value of the whole property, specifying the portion belonging to each sibling. The siblings may "partition" the estate in one of two ways: amicably partitioning the property or partitioning by licitation, which is a lawsuit filed in Louisiana courts for the fair market value in order to sell the property as a whole. In addition to dividing real property, siblings may partition their assets in several other ways.
If siblings cannot amicably partition the estate, consider hiring an executor. Siblings should contact a probate attorney to assist them in selecting the most appropriate professional for the situation if one is needed. The siblings should then create a power of attorney or contract with the selected professional so that they are able to secure their inheritance under the laws of Louisiana.