4.4.1 Forced Heirs

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).