Louisiana law states that without a will, separate property is inherited in a single inheritance order unlike in most other states. That order is somewhat complicated, and its unusual provisions often come as a devastating and unwanted surprise to the surviving family.
If one is married but does not have a will, the line of inheritance in Louisiana is the same as that of a single person. That is to say: the real use (usufruct) of the funds and goods is granted to the parents of the deceased; the deceased’s siblings are granted bare ownership. If the decedent’s parents die first, the siblings inherit full ownership with rights of use.
Where is the wife or husband in all this? Out in the open, without a will specifying her inheritance. Children are somewhat better protected in the absence of a will, but a spouse inherits nothing at all beyond community property…and “community property” is not defined the way most people assume that it is; many valuable assets may be “separate property” instead, and that means danger to the surviving spouse.
By legal definition, separate property is property acquired before the marriage; acquired by inheritance or gift to one of the spouses individually; or purchased by a spouse with separate funds or with separate and community funds where the community funds are very small compared to the separate funds.
How does that legalese translate to a real life situation? Good…
Let’s say two young married couples start shopping for commercial property together. Their wives have no part in these acquisitions and each wife signs as “intervening” (ie, they represent and agree that the property is being purchased by their husbands with separate funds and is not part of the marital property). Now, let’s say that both men die in a tragic accident and, being young, healthy and robust, they have never thought of preparing wills.
This “separate property” is not part of community property, even if it was purchased after the marriage, and neither wife will inherit. If neither of them has children, the heirs will be the parents or siblings of the deceased. If the men have children, the children will inherit the bare ownership, but not the rights of use. In any case, the wives -the mothers of these children- do not inherit naked or usufruct rights, unless they wish to the contrary.
For another example, suppose you inherited a campground or farmland in Louisiana, and although you were married twice, you never had any children of your own. Her second wife had children with her first husband, but while she raised and loved them as her own, she never legally adopted those children. If he dies before executing a will, the camp and farmland are separate property (because he inherited them individually, not as community property).
Your wife cannot inherit your separate property unless it is left to her in a will, and in this case, the children you have loved and raised as your own cannot inherit either, since they were never legally adopted. In the absence of a will to the contrary, her parents, if living, inherit the separate property; if your parents are deceased, your siblings inherit.
Clearly, the quirks of Louisiana law require anyone with property to take the time to file a properly drafted will with trust provisions to ensure that their family is cared for and provided for in accordance with their wishes. When it comes to separation of property in Louisiana, there is no protection for a spouse or partner without a will, but a properly drafted will will ensure his protection in the event of his death.
Louisiana estate planning with a correct draft will ensure the protection of your family. With more than 30 years of experience, the attorneys at Melcher’s Law Firm use their knowledge and the client’s circumstances to determine the type of trust or will to recommend.