Written by: Attorney R. Jerome Andries, Andries Law Firm, LLC
Usufruct is a complex legal term that can be hard to understand. The word “Usufruct” basically means “Use.” It can be defined as a right of one person on the property of another. This right of “Use” can be for a limited time such as 10 years or it can be for the lifetime of the person the right was granted to. It entirely depends upon how the right was obtained and whether it was executed by a legal document such as a will.
In order to fully understand usufruct in Louisiana, you need to understand what a naked owner is. A usufruct is the right to use of another’s property and does not give full ownership. The person who actually owns the property is the naked owner. A usufructuary or the person the right of usufruct was given to has the ability to use, possess and administer the property during the time period allowed.
For example, a usufructuary may have the use of a property, while the naked owner actually owns the property. When the usufruct ends, the property will revert back to the naked owner and he or she will then be granted “Use” of the property.
It’s a confusing legal term because it basically splits property ownership between multiple people and neither of them possess full ownership.
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How to Create a Usufruct
There are multiple ways to grant a usufruct to someone over your property. Some happen by operation of Louisiana law and others are by way of a Last Will & Testament granting usufruct. The following usufructs are created by operation of Louisiana law and happen without the property owner doing anything:
- Surviving Spouse Usufruct
- Surviving parents
- Parents of minor children
The most common usufruct that you will see is the surviving spouse usufruct. Louisiana Civil Code Article 890 tells us that, “If the deceased spouse is survived by descendants, the surviving spouse shall have a usufruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or remarries, whichever occurs first.”
The surviving spouse usufruct that is created by operation of law is highly controversial in Louisiana for multiple reasons.
Surviving Spouse Usufruct Terminates Upon Remarriage
If your surviving spouse remarries, the usufruct that was granted to him or her will terminate and the property will revert back to the naked owners, which are usually your children. This may be exactly what you wish to happen, but it could also be an unintended consequence of not completely understanding the law. You may want your surviving spouse to use your property as long as he or she stays unmarried, but that is your choice.
The surviving spouse usufruct also terminates when your surviving spouse dies. Your property will then revert back to the naked owners, likely your children, and they will have full ownership of your property. Many married people are fine with this outcome because they wanted the property to stay in their lineage once their spouse dies.
Keep in mind, your surviving spouse will have to deal with your children once you die. You need to decide now what type of usufruct you want him or her to have: usufruct as long as they do not remarry or usufruct for the rest of their lives.
Most married couples would want their spouses to find happiness again and still be able to enjoy the fruits of their property. In that case, you will want to speak with a Louisiana estate planning attorney to draft a testament that will grant a “Lifetime Usufruct” to your spouse.
Lifetime Usufruct in Louisiana
The lifetime usufruct in Louisiana grants the usufruct (use) of your property to a person such as your spouse for the rest of their lives. This is a great choice for those who want their surviving spouses to be able to use their property with no issues from their adult children for the entirety of their lives. The lifetime usufruct is for life and does not terminate upon your surviving spouse remarrying, but upon their death, the property will revert back to your adult children or other heirs.
What If I Have Forced Heirs?
Louisiana is a state that has what is known as “Forced Heirs.” A forced heir is a child, can be an adult child, who is 23 years of age or younger when you die, or any age when you die, but they have a physical infirmity or a mental incapacity that prevents them from taking care of themselves or their estates permanently. You cannot “Will them out,” or “Cut them out of the will,” so to speak. They are entitled to a portion of your property by law. Here’s an article that explains Forced Heirs in Louisiana in more detail.
You may be wondering what forced heirs have to do with usufruct? As you know, a forced heir cannot be deprived of the part of your estate that the law reserves to him or her unless you have just cause to disinherit him or her. Here is an article that explains how to disinherit a child in Louisiana.
You may not be able to deprive the forced heir of their portion, but you can execute a usufruct to someone else giving them use of the property for a term. Louisiana Civil Code Article 1499 gives us some insight, “The decedent may grant a usufruct to the surviving spouse over all or part of his property, including the forced portion, and may grant the usufructuary the power to dispose of non-consumables as provided in the law of usufruct. The usufruct shall be for life unless expressly designated for a shorter period…. A usufruct over the legitime in favor of the surviving spouse is a permissible burden that does not impinge upon the legitime, whether it affects community property or separate property, whether it is for life or a shorter period, whether or not the forced heir is a descendant of the surviving spouse, and whether or not the usufructuary has the power to dispose of non-consumables.
In short, you can grant a usufruct to your surviving spouse over your property “Including the forced portion,” and it is a permissible burden that is allowed by law.
Many Louisiana residents worry about their surviving spouse when they have forced heirs, but you can speak with an experienced Louisiana estate planning attorney to execute the proper documents that will grant your surviving spouse a lifetime usufruct.
You may think your adult children will tend to your last wishes and take care of your surviving spouse, but you cannot rely on their word. Only a written document, usually prepared by an attorney, will stand up in court to protect your spouse. There can be a lot of friction between your surviving spouse and your adult children or forced heirs and it is up to you to do something now while you are alive to protect the person you chose to marry.
Louisiana usufruct and forced heir law is a difficult concept to understand. It is highly suggested that you speak with a Louisiana attorney that is experienced in estate law and successions as soon as you can to discuss your options. The law changes and you cannot rely on an article for legal advice.
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Attorney R. Jerome Andries
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