Attorney R. Jerome Andries
Disinheritance is defined as the act by which someone deprives (takes away) his or her heir of their inheritance, who, without such act, would inherit. This is the act of depriving a forced heir in Louisiana of their inheritance that the law would have given them had it not been for the act of disinheriting them.
If you’ve found this article, chances are you are dealing with an adverse situation with your children or you are the succession representative and are looking for information that can guide you to a resolution.
Before we discuss the rules for disinherison in Louisiana, it’s important to note that you can execute a Last Will & Testament to give possession of your property at any time. The issue you may face is when you have what Louisiana law refers to as a Forced Heir. While you can give your property to anyone you wish under normal circumstances, forced heirship dictates whether or not you can actually give away all of your property.
- Related Article: The Louisiana Succession Checklist!
What is a Forced Heir in Louisiana?
A forced heir is described in Louisiana Civil Code Article 1493: “Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent….”
To sum up the article, a Forced Heir is someone who:
- Is a descendant of the first degree (children), who;
- Are 23 or younger when their parent died; or
- Any age if they have a mental incapacity or physical infirmity;
- That makes them permanently incapable of taking care of their estates when you die.
If you don’t have a forced heir when you die, then you are legally able to donate your property to anyone or execute a will that “cuts out” your adult children. However, if a forced heir is present, you have a few rules to follow and usually cannot deprive them of their inheritance unless they do something fairly big against you. Louisiana Civil Code Article 1494 explains: “A forced heir may not be deprived of the portion of the decedent’s estate reserved to him or her by law, called the legitime, unless the descendent has just cause to disinherit him or her.”
The key words here are “Just Cause” and whether or not you have a good enough reason to disinherit your child or children. The law is very specific on the reasons and it must fit neatly into one of the categories.
Before we discuss the reasons for disinheriting your children, let’s talk about the forced heir portion and how much of your estate they are entitled to. Louisiana Civil Code Article 1495: “Donations inter vivos and mortis causa may not exceed three-fourths of the property of the donor if he or she leaves at death, one forced heir, and one-half if he leaves, at his death, two or more forced heirs. The portion reserved for the forced heirs is called the forced portion and the remainder is called the disposable portion.
To break that article down, you have to look at your estate as two-parts: one part is the disposable portion and you can do whatever you want with it and the other is the forced portion which is reserved for your forced heirs. The amount you must keep aside for them depends on how many forced heirs you have.
What Can You Do With the Forced Portion While You Are Living?
You can’t do much with the forced portion while you’re alive. The law limits what you can do with that part of your estate. Louisiana Civil Code Article 1496 states that, “No charges, conditions, or burdens may be imposed on the legitime except those expressly authorized by law, such as a usufruct in favor of a surviving spouse or the placing of the legitime in trust.” Remember, the legitime is the portion of the decedent’s estate that is reserved to him by law and you cannot deprive him of this portion unless you have “Just Cause” to disinherit him. That also means you can’t place any charges, conditions or burdens on this portion except for a usufruct for your surviving spouse which gives him or her “Use” of the property, but they do not own it “In full.”
What If I Don’t Have Forced Heirs?
Then you can do whatever you want with your property. Louisiana Civil Code Article 1497 states, “If there is no forced heir, donations inter vivos and mortis causa may be made to the whole amount of the property of the donor…” In short, you can give away all of your property when you are alive or by Last Will and Testament after you die if you don’t have forced heirs.
Now that you understand forced heir law in Louisiana, we can discuss how to disinherit a forced heir. First, let’s look at Louisiana Civil Code Article 1617, “A forced heir shall be deprived of his legitime if he is disinherited by the testator, for just cause, in the manner prescribed by law.” The only way a forced heir can be cut out of their inheritance is if you have “Just Cause” to disinherit them and follow the law.
The Disinherison Must Be Express and for Just Cause
Louisiana Civil Code Article 1619 says that, “The disinherison must be made expressly and for a just cause; otherwise, it is null. The person who is disinherited must be either identified by name or otherwise identifiable from the instrument that disinherits him.” Basically, you must state the individual that is to be disinherited and there must exist a very specific reason for the disinherison that is covered by law.
Disinheriting Children Under Louisiana Law
Now that you have an understanding of forced heirs, how your estate is divided and how you must disinherit – it’s time to discuss the available reasons the law provides that you can disinherit.
Louisiana Civil Code Article 1621 states, “A parent has just cause to disinherit a child if:
- The child has raised his hand to strike a parent, or has actually struck a parent; but a mere threat is not sufficient;
- The child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury.
- The child has attempted to take the life of a parent.
- The child, without any reasonable basis, has accused a parent of committing a crime for which the law provides that the punishment could be life imprisonment or death.
- The child has used any act of violence or coercion to hinder a parent from making a testament.
- The child, being a minor, has married without the consent of the parent.
- The child has been convicted of a crime for which the law provides that the punishment could be life imprisonment or death.
- The child, after attaining the age of majority and knowing how to contact the parent, has failed to communicate with the parent without just cause for a period of two years, unless the child was on active duty in any of the military forces of the United States at the time.
B. For a disinherison to be valid, the cause must have occurred prior to the execution of the instrument that disinherits the heir.
The only way you can disinherit a child under Louisiana law is if they do an act that is on this list. This is used when a parent has to disinherit a child, but there is also a process for a grandparent to disinherit a grandchild.
Louisiana Civil Code Article 1622 states that, “A grandparent may disinherit his grandchild for any of the causes, other than the sixth, expressed in the preceding Article, whenever the offending act has been committed against a parent or a grandparent. He may also disinherit the grandchild for the seventh caused expressed in the preceding Article.” A grandparent will still have to use the list of causes to disinherit a grandchild.
Defenses to Disinherison in Louisiana
There is a defense to disinherison in Louisiana that can be used by a forced heir that will allow them to continue to inherit. Louisiana Civil Code Article 1626 tells us that, “A disinherison shall not be effective if the person who is disinherited shows that because of his age or mental capacity he was not capable of understanding the impropriety of his behavior or if he shows that the behavior was unintentional or justified under the circumstances. Proof of this defense must be by a preponderance of the evidence, but the unsupported testimony of the disinherited heir shall not be sufficient to establish this defense.”
The law provides for a defense to disinherison if they can show:
- They weren’t able to understand their behavior due to age or mental capacity;
- Behavior was unintentional; or
- They had a justified reason for the behavior;
- Must be able to prove with evidence and cannot rely on heir’s testimony.
It’s important that you speak with an attorney that specializes in disinherison law in Louisiana. They have the training and experience to assist you with these types of matters. Check out this article for tips on how to choose an attorney.
Louisiana Estate Planning Attorney
R. Jerome Andries
Call Us! (318) 269-5857
Message Us! Jerome@AndriesLawFirm.com
Disclaimer: This website does not intend to provide legal advice. It is recommended that you speak with an attorney with any legal questions you may have.