Forced heirship is one of the legacies of Louisiana’s civil law history. For many years, all children, of whatever age, were forced heirs, meaning that they could not be deprived of a portion of their parents’ estates, even if a testator/parent did not mention the children in a testament and left all of the parent’s property to others. This amount reserved to a forced heir is referred to as the legitime or forced portion. Unless there is a just cause to disinherit a forced heir, the legitime cannot be disposed of to others.1

The Louisiana Legislature attempted to change the forced heirship laws several times in the early 1990s, but these changes were declared unconstitutional by the Louisiana Supreme Court. By constitutional amendment, the law was successfully changed on January 1, 1996 to limit those who qualify as forced heirs.2

Forced heirs are descendants of the first degree who, at the time of the decedent’s death, are (1) twenty-three years of age or younger (i.e., right up to the twenty-fourth birthday); or (2) permanently incapable of taking care of their persons or administering their estates at the time of the decedent’s death because of a physical or mental infirmity, or an inherited, incurable condition, supported by medical records, that may render them incapable of taking care of their persons or estates in the future.3  Some consider this latter clause to be an open invitation to litigation. Certainly, heirs with severe mental illness would be natural beneficiaries of this clause. Reported cases have held that persons with bipolar disorder may meet the statutory definition of “permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent”. 4

When a testator died or executed the testament to be probated before the new law came into effect, complex rules determine whether the new law or prior law governs. If the decedent died before January 1, 1996 or executed his last will before January 1, 1996 and had children over 23 years old, you should review the discussion in L. Carman, Louisiana Successions §§ 2.49–.50. For pre-January 1, 1996 wills where the decedent died in 1996 or later, the testator’s intent as to a forced heir portion is determined on an ad hoc basis. These older children may qualify as forced heirs if the pre-January 1, 1996 law governs or if a pre-January 1, 1996 will is interpreted to give a forced portion.5

When a descendant of the first degree predeceases the decedent, representation takes place for forced heirship only (1) if said descendant was younger than 24 years of age at the decedent’s death; or (2) if a child of said descendant, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent’s death, or that child has an inherited, incurable condition, supported by medical records, that may cause the child to be incapable of taking care of the child’s person or estate in the future, regardless of the age of the descendant of the first degree at the time of the decedent’s death.6

• 1La. C.C. art. 1494. For the causes of disinhersion, see La. C.C. arts. 1617–1626.
• 2La. Const. art. XII, § 5.
• 3La. C.C. art. 1493.
• 4See, e.g., In re Succession of Wilkins, 2019-1060 (La. App. 1 Cir. 05/11/20), 303 So. 3d 321; Stewart v. Estate of Stewart, 07-333 (La. App. 3 Cir. 10/03/07), 966 So.2d 1241; Succession of Ardoin, 07-43 (La. App. 3 Cir. 05/30/07), 957 So. 2d 937.
• 5For a discussion of this problem, see 10 La. Civ. L. Treatise, Successions & Donations § 10:15 and cases discussed therein.
• 6La. C.C. art. 1493(B).

The portion reserved for the forced heirs is called the forced portion, or legitime, and the remainder is called the disposable portion.1 Since 1982, donations inter vivos and mortis causa may not exceed 3/4ths of the donor’s property (if the donor leaves one forced heir at death) and 1/2 if the donor leaves two or more forced heirs.2 Be sure to apply the forced heirship law in effect at the time of the decedent’s death.3 Prior to 1982, the forced portion was 1/4 for 1 child, 1/2 for 2 children, and 2/3 for 3 or more children. 

Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent’s estate to which the forced heir would succeed by intestacy, then the legitime equals the fraction due an intestate successor.4 For instance, if a decedent leaves five children, one of whom qualifies as a forced heir, the forced portion is 1/5 of the estate rather than 1/4. When calculating the forced portion, all donations made by the decedent within the last three years of life are included in the decedent’s property.5

A donation that impinges on the legitime is not null but is merely reducible to the extent necessary to eliminate the impingement.6 For example, if a husband’s will leaves all of his property to his wife and there is a forced heir who is entitled to one-fourth, the legacy to the wife is reduced to the disposable portion (3/4) in full ownership and a usufruct for life, with the power to dispose of nonconsumables, over the forced portion, because that usufruct could have been left to her expressly under La. C.C. art. 1499. This is the maximum extent to which reduction is needed to eliminate the excess that impinges upon the legitime, since the decedent could legally have made such a bequest to his surviving spouse. No further reduction is necessary or appropriate.7

• 1La. C.C. art. 1495.
• 2Id.
• 3La. C.C. art. 870(B).
• 4La. C.C. art. 1495.
• 5Id.
• 6La. C.C. art. 1503.
• 7See La. C.C. art. 1503 cmt. a–b.

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 placement of the legitime in trust.1

The decedent may grant a usufruct to the surviving spouse over all or part of the decedent’s property, including the forced portion, and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of usufruct.2 The usufruct shall be for life unless expressly designated for a shorter period and shall not require security except as expressly declared by the decedent or as permitted when the legitime is affected.3 Security can be demanded from the surviving spouse by a forced heir who is not the child of that spouse.4  The requirement of security is not “automatic;” a forced heir “may request” such security, and the court “may order” such security as is necessary.

A usufruct can extend to movables, including cash, which is classified as a “consumable thing.”5 In that case, the usufructuary has the right to spend those funds; the usufruct continues to exist over the items purchased.6 Thus, consumable movables may be completely consumed by the usufructuary, and the naked owner has little recourse except a possible claim against the usufructuary or the usufructuary’s succession when the usufruct ends.7 “Nonconsumable things” include land, houses, and furniture.8 The usufructuary has the right to use and possess these things but not to alienate them.9 Nonconsumables can be sold with the permission of the naked owner(s), and the usufruct attaches to the proceeds of the sale unless the parties agree otherwise.10 A usufruct may be terminated for non-use or abuse of enjoyment and duties.11

• 1La. C.C. art. 1496.
• 2La. C.C. art. 1499.
• 3Id.
• 4La. C.C. art. 1514.
• 5La. C.C. art. 536.
• 6La. C.C. art. 538.
• 7Id.
• 8La. C.C. art. 537.
• 9La. C.C. art. 539.
• 10La. C.C. art. 616.
• 11La. C.C. arts. 621, 623.

If there is no forced heir, donations inter vivos and mortis causa may be made of any of the donor’s property.1 However, a donation inter vivos cannot divest the donor of all property—enough must be reserved for subsistence.2 This limitation on donors’ rights reflects the public policy of not allowing donors to impoverish themselves so as to become wards of the state. For obvious reasons, such restrictions do not apply to “mortis causa” donations.

• 1La. C.C. art. 1497.
• 2La. C.C. art. 1498.