LOUISIANA LAWS AFFECTING ESTATE PLANNING
The laws of the individual states vary with regard to property ownership, inheritance rights and techniques available to leave property to your heirs at death. Louisiana has a number of concepts that are unique and that are not found in other states. As an example, the term "usufruct" is used herein. Very generally this is a right of use and enjoyment over property and the right to receive all income therefrom. Another person would "own" the property, subject to this right of usufruct. This type of fragmented ownership does not exist in other states. Forced heirship is also a concept unique to Louisiana. These are but two examples of how Louisiana's laws differ from other states. Louisiana also has a system of ownership between married persons known as "community property." Not all property owned by a married couple is classified as community property as we will see below.
PROPERTY OWNERSHIP CLASSIFICATIONS
The form of ownership of property impacts estate and retirement planning. In Louisiana the basic forms of ownership are separate property and community property. If you are not married, then all property which you own is separate property. The community ownership classification should not be confused with status as a co-owner or owner in in-division. For example, you may own an undivided one-half (1/2) interest in a piece of real estate with another person, such as another family member. This typically happens where you inherited property from family. Although you do not have full ownership in the entire piece of real estate, you do have separate ownership over your undivided one-half (1/2) interest. Forms of ownership in other states such as "tenancy in common with right of survivorship" and "tenancy by the entirety" are not recognized in Louisiana.
If you are domiciled in this state and married, Louisiana's Community Property Regime would apply, unless excluded or modified by agreement. But of course, a married person may also own separate property. If you and your spouse have community property, each of you own a present undivided one-half (1/2) interest in the specific asset.
The ability of each spouse to sell, lease or mortgage community property depends upon the type of property. In some cases, one spouse can manage or dispose of community property, whereas in other cases the concurrence of both may be necessary. For example, both spouses must concur to alienate, mortgage or lease community real estate such as their home. On the other hand, a spouse has the sole right to alienate, mortgage or lease a movable registered in his or her name, e.g. a car registered in your name. Below is an overview of what is included in community and separate property classifications.
Separate property includes, but is not limited to, the following:
- Property acquired prior to marriage.
- Property classified as separate property under a valid marriage contract.
- Inheritances or donations made to a spouse individually.
Everything not classified as separate property is classified as community. There are a few less common separate property classifications which have not been listed herein. If you find yourself in a situation where classification is important, seek competent legal advice to make this determination.
The community classification is very broad, and as indicated above, it generally includes all property not classified as separate. It specifically includes the following:
- All property acquired during the marriage is generally presumed to be community. Proof that such is not the case could be given. This is a very important presumption and it places the burden upon the person alleging to the contrary.
- Property donated to the spouses jointly would usually be classified as community property.
- Income from separate property is usually classified as community income unless a declaration reserving this income as separate is properly executed and filed. This item sometimes comes a surprise to people who own a substantial amount of separate property.
- All property not classified as separate property.
The community property classification is broad and encompasses even ownership of qualified plan benefits accrued during marriage. However, federal law significantly affects recognition of these rights to the non-employee spouse. The interrelationship between federal and state law for this type of asset is at best confusing and requires close scrutiny on a case by case basis. Even life insurance acquired during marriage may be so classified, but the rules on classification of life insurance are somewhat different and this asset is more difficult to classify. There are some exceptions, but the general rule is community ownership. Beneficiary designations will also be of utmost importance and must be examined in crafting an estate plan.
Property ownership classification is important in several contexts, including divorce, estate planning and succession proceedings. These issues must be examined by you and your attorney in order to determine either the proper planning or the proper treatment of the asset in a non-planning context.