What is Forced Heirship:
Louisiana is the only state in the United States that has the institution of forced heirship. In the past, Louisiana law provided that all children (and descendants of a predeceased child) were classified as forced heirs. The new laws provide much more testamentary freedom (to leave your property to others) by restricting the persons that will be classified as forced heirs. A portion of the estate referred to as the "disposable portion" is not subject to the claims of forced heirs. If there are no forced heirs, then testamentary freedom is available over the entire estate. If there is one forced heir, the disposable portion is 3/4ths of the estate. With two or more forced heirs, the disposable portion is one-half of the estate.
There are now only two major categories of forced heirs, being 1) children under 24 years old and 2) certain disabled children regardless of age. There is a sub-category of forced heir where your child has predeceased you making classifying children of the predeceased child (decedent's grandchildren) forced heirs.
If at the time of your death a predeceased child would have been under 24 years of age, your grandchildren (children of the predeceased child), if any, would be classified as forced heirs of your succession at your death. A disabled child of a predeceased child may also be so classified. As these rules are complex, always check with a licensed Louisiana Estate Planning Lawyer when in doubt.
What share is a forced heir entitled to? The share received by a forced heir is one-fourth (1/4) if there is one forced heir and one-half (1/2) if there are two or more forced heirs. See the discussion above on the disposable portion. If the forced heir is entitled to a forced share which is larger than his intestate (without a Will) share, then the smaller intestate share is the forced portion. This rule would apply where there are more than 4 forced heirs. The forced share may be burdened by a usufruct (in layman's terms, a right of use and right to income) in favor of the surviving spouse. This provides a planning opportunity for married couples with young children or others classifed as forced heirs.
If you do have forced heirs and the forced heir is not given the portion or quantum of the estate to which he or she is entitled, the forced heir can reduce the amount of other donations to obtain the forced portion. Example: Father (F) has five children from a prior marriage being Cl, C2, C3, C4 and C5. Cl is 32 years old and is a successful physician. C2 is 30 years old and suffers severe mental retardation. C3 is 29 years old and although he has full legal capacity he is unskilled for any gainful employment. C4 is predeceased, having died in an automobile accident at age 27. C4 was married, but her spouse was also killed in the accident and they left a daughter (GD) (F's granddaughter), who is a minor. C5 is 22 years old and is a senior in chemical engineering. Under current law, Cl, C3 and C4 will not be classified as forced heirs. Nor will C5's daughter (F's granddaughter), even though she would have been so classified under old law and although she may suffer severe financial hardship. C2 and C5 will be classified as forced heirs, although C5 may be self-sufficient with a bright future, whereas C2 likely requires financial assistance. Clearly, hardship and inequity can result in many situations as indicated by this example. Note:
In calculating the amount of the forced portion, some very important assets are not considered. An important item not considered is premiums paid for insurance on the life of the donor and proceeds from such life insurance payable to a beneficiary other than the estate. Also excluded will be employer and employee contributions and benefits payable by reason of death, disability, retirement and termination of employment under Individual Retirement Accounts or Annuities (IRA's) or Qualified Retirement Plans, such as Pension and Profit Sharing Plans. A similar rule exists for deferred compensation plans for a public or government employer. However, the proceeds from life insurance, qualified plans and IRA's can be used to satisfy the forced portion.
Every family and factual situation is unique and competent legal advice should be sought when these types of issues arise.