5 Principles Applicable to All Successions

5 Principles Applicable to All Successions aetrahan Thu, 06/22/2023 - 11:29

5.1 Capacity to Inherit

5.1 Capacity to Inherit aetrahan Thu, 06/22/2023 - 11:29

To inherit property, a successor must exist at the decedent’s death.1 An unborn child conceived before the decedent’s death and born alive is considered to have existed at the decedent’s death and therefore can inherit from the decedent.2 Age and mental capacity are irrelevant to capacity to inherit.3

A child conceived after the decedent’s death by means of artificial reproductive technology is deemed the decedent’s child with the capacity to inherit from the decedent if (1) the decedent specifically and in writing authorized his surviving spouse to use his gametes; and (2) the child was born to the surviving spouse, using the decedent’s gametes, within three years of the decedent’s death.4

  • 1La. C.C. art. 939.
  • 2La. C.C. art. 940.
  • 3La. C.C. art. 939.
  • 4La. R.S. 9:391.1.

5.2 Representation

5.2 Representation aetrahan Thu, 06/22/2023 - 11:31

Representation is a fiction of the law, the effect of which is to put the representative in the place, degree, and rights of the person represented.1 Representation does not take place in favor of ascendants.2 Representation is only permitted in the descending and collateral lines.3 Representation can take place in both intestate and testate successions.

If representation is permitted, the partition is made by roots.4 If one root has produced several branches, the subdivision is also made by roots in each branch, and the members of the same branch inherit by heads.5 Descendants inherit by one share per each descendant, so that multiple descendants in the same degree do not necessarily divide the decedent’s estate per capita, but rather split pro rata the share of the predeceased ancestor whom they represent.6  For instance, suppose a decedent was predeceased by two children, A and B. A had one child and B had two children. In the decedent’s intestate succession, A’s child would receive 1/2 of the estate and B’s children would each receive 1/4 of the estate (1/2 each of the 1/2 that would have been inherited by B had B not predeceased). 

If the owner of immovable property dies and one or more of the successors dies without a succession for the original owner, it is not necessary to file a succession for each deceased person in order clear the title to that immovable property.7   Representation can be used to substitute the second generation of heirs/legatees for those who are deceased. In fact, it is prohibited for a deceased person to inherit in a succession.8 The succession attorney should lay out the path of succession in the petition, ending with the still living successors. 

  • 1La. C.C. art. 881.
  • 2La. C.C. art. 883.
  • 3La. C.C. arts. 882, 884. Representation in the collateral line takes place only in favor of the descendants of the decedent’s siblings (i.e., the decedent’s nieces and nephews). Id. art. 884.
  • 4La. C.C. art. 885.
  • 5Id.
  • 6See id.
  • 7In re Succession of Parker, 38,920, 38,921, 38,922 (La. App. 2 Cir. 2004), 882 So. 2d 748.
  • 8La. C.C. art. 58.

5.3 Role of the Heirs

5.3 Role of the Heirs aetrahan Thu, 06/22/2023 - 12:01

5.3.1 Heirs’ Options in a Succession

5.3.1 Heirs’ Options in a Succession aetrahan Thu, 06/22/2023 - 12:02

Heirs have three options upon succession to a decedent’s property: (1) accept unconditionally; (2) accept with benefit of inventory; or (3) renounce.

5.3.2 Accepting an Inheritance

5.3.2 Accepting an Inheritance aetrahan Thu, 06/22/2023 - 12:20

Acceptance may be either formal or informal.1 Formal acceptance occurs when the successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding.2 Informal acceptance occurs when the successor does some act that clearly implies his intent to accept.3 Acceptance obligates the successor to pay estate debts up to that successor’s share of the estate, valued at the time of receipt.4

A successor’s creditor may, with judicial authorization, accept succession rights in the successor’s name if the successor has renounced them in whole or in part to the prejudice of the creditor’s rights.5 In such a case, the renunciation may be annulled in favor of the creditor to the extent of the creditor’s claim against the successor, but remains effective as to the successor.6

  • 1La. C.C. art. 957.
  • 2id.
  • 3Id.
  • 4La. C.C. arts. 961, 1416.
  • 5La. C.C. art. 967.
  • 6Id.

5.3.3 Renouncing an Inheritance

5.3.3 Renouncing an Inheritance aetrahan Thu, 06/22/2023 - 12:22

Renunciation is voluntary and involves the successor “giving up” his/her right to inherit from the decedent. Renunciation must be express and in writing.1 In the absence of a renunciation, a successor is presumed to accept succession rights.2 Nonetheless, for good cause the successor may be compelled to appear in court to specifically accept or renounce.3

The rights of an intestate successor who renounces accrete to those persons who would have succeeded to those rights if the successor had predeceased the decedent.4 A renunciation thus produces a result similar to representation. In the absence of a governing testamentary disposition, the rights of a testate successor who renounces also accrete to those persons who would have succeeded to them if the legatee had predeceased the decedent.5 Prior to August 15, 2001, in the absence of a governing testamentary provision, the rights of a testate successor accreted to the successor’s descendants by roots who were alive at the time of his death. If the successor had no descendants, the share devolved in accordance with the rules for lapsed legacies.

Care must be taken in planning renunciations. In some instances, an heir who renounces may end up getting a share of the inheritance if another heir subsequently renounces. For example, suppose a decedent is survived by 3 children, A, B and C, and the goal is to concentrate title in A. B renounces, but B has no descendants. B’s share will go to A and C. If C later renounces and has no descendants, his inheritance will go to A and B. This devolution to B after B’s renunciation can be prevented by having B’s original renunciation also renounce any accretions.6

Co-heirs in an intestate succession will often tell the attorney that they wish to renounce a succession so that another heir may inherit the entire property. Children will often want to do this, thinking the estate will then go to a surviving parent. The attorney should counsel such clients as to the effect of a true renunciation, namely, that the property will often devolve to their own children, creating an even more fractured ownership scheme. The co-heir may then wish to donate their share to another specific co-heir to whom the renouncer’s share would not otherwise accrete. This is possible and is called a “donative renunciation.” A donative renunciation is deemed to be an acceptance because the renouncer is really accepting the succession and then directing it to another person.7  This factor may be important when considering whether the donating heir will be held liable for succession debts or lose eligibility for public benefits such as SSI or Medicaid. To the extent that the donative renunciation disposes of incorporeal rights and/or immovables, it should be made by authentic act.8

Of note, the Fifth Circuit has held that a pre-bankruptcy renunciation of an inheritance is not a fraudulent transfer that would preclude discharge.9

  • 1La. C.C. art. 963.
  • 2La. C.C. art. 962.
  • 3Id.
  • 4La. C.C. art. 964.
  • 5La. C.C. art. 965.
  • 6See La. C.C. art. 964 cmt. c.
  • 7La. C.C. art. 960.
  • 8See La. C.C. art. 960 cmt.
  • 9In re Laughlin, 602 F.3d 417 (5th Cir. 2010).

5.3.4 Unworthiness to Inherit

5.3.4 Unworthiness to Inherit aetrahan Thu, 06/22/2023 - 12:28

Unworthiness is an involuntary termination of inheritance rights that must be declared by the court.1   When declared unworthy, an heir is deprived of the right to inherit among other consequences.2 The grounds for a successor to be declared unworthy are (1) conviction of a crime involving the intentional killing, or attempted killing, of the decedent; or (2) judicial determination of participation in the intentional, unjustified killing, or attempted killing, of the decedent.3 Reconciliation or forgiveness will cure the grounds of unworthiness.4

An action to declare a successor unworthy may be brought only by a person who would succeed in place of or in concurrence with the successor to be declared unworthy or by one who claims through such a person.5 When a person who may bring the action is a minor or an interdict, the court may appoint an attorney to represent the minor or interdict for purposes of investigating and pursuing an action to declare a successor unworthy.6 An action to declare a successor unworthy is subject to a liberative prescription of five years from the death of the decedent as to intestate successors and five years from the probate of the will as to testate successors.7

If the decedent died intestate and the successor is declared unworthy, the successor’s rights devolve as if the unworthy had predeceased the decedent. However, if the decedent died testate, then the succession rights devolve under the provisions for testamentary accretion as if the unworthy successor had predeceased the testator.8  When the succession rights devolve upon a child of a successor who is declared unworthy, the unworthy successor and the other parent of the child cannot claim a legal usufruct over the property inherited by their child.9

  • 1La. C.C. art. 941.
  • 2La. C.C. art. 945.
  • 3La. C.C. art. 941.
  • 4La. C.C. art. 943.
  • 5La. C.C. art. 942(A).
  • 6La. C.C. art. 942(B).
  • 7La. C.C. art. 944.
  • 8La. C.C. art. 946(A).
  • 9La. C.C. art. 946(B).

5.4 Succession Debts

5.4 Succession Debts aetrahan Thu, 06/22/2023 - 12:31

Estate debts are the debts of the decedent and administration expenses.1 Debts of the decedent are the decedent’s obligations and those arising as a result of the decedent’s death, such as funeral and burial costs.2 Administration expenses are those obligations incurred in the collection, preservation, management, and distribution of the decedent’s estate.3

A successor who accepts the succession is liable for the estate debts to the extent of the value of the property the successor receives, valued as of the time of receipt.4 If the succession debts are not partitioned, each heir remains liable for his share of the succession. Nevertheless, in order to equalize the shares, those heirs who take the largest allotments may be charged with the payment of a larger portion of the debts.5

The heirs or legatees may be sent into possession of the decedent’s estate on an ex parte petition if the succession is “relatively free from debt.”6 Mortgages and other secured debts are not considered in this calculation, as the creditor is protected by the fact that the debt is secured by the assets. 

  • 1La. C.C. art. 1415.
  • 2Id.
  • 3Id.
  • 4La. C.C. art. 1416.
  • 5La. C.C. art. 1371.
  • 6La. C.C.P. art. 3001(A).

5.5 The Marital Portion

5.5 The Marital Portion aetrahan Thu, 06/22/2023 - 12:33

When a spouse dies rich in comparison with the surviving spouse, the surviving spouse is entitled to claim the “marital portion” of the estate of the deceased spouse.1 There is no definitive test to determine when a surviving spouse is entitled to a marital portion.2  However, the marital portion usually should be awarded when the comparison of assets show a ratio of 1 to 5 in favor of the deceased spouse.3   The surviving spouse’s earnings or earning capacity are not factors to be considered when determining whether a marital portion is due.4

The marital portion is 1/4 of the succession in ownership if the deceased spouse died without children, the same fraction in usufruct for life if the deceased is survived by 3 or fewer children, and a child’s share in such usufruct if the deceased is survived by more than 3 children.5 The marital portion is reduced by any legacy to the surviving spouse and by payments due as a result of the death, e.g., life insurance or social security.6 The surviving spouse’s right to claim the marital portion is personal and nonheritable and prescribes three years from date of death.7 A formal claim within a succession or lawsuit is the safest way for a surviving spouse to enforce a claim for the marital portion.

The marital portion may be an issue when the family home was the separate property of the deceased spouse. Establishing the right to a marital portion may be essential to preventing the eviction of the surviving spouse from the family home.

  • 1La. C.C. art. 2432.
  • 2Succession of Zilfe, 378 So. 2d 500 (La. App. 4 Cir. 1980).
  • 3Succession of Adams, 2002-0005 (La. App. 3 Cir. 05/08/02), 816 So. 2d 988.
  • 4Succession of Thumfart, 289 So. 2d 850 (La. App. 4 Cir. 1974).
  • 5La. C.C. art. 2434.
  • 6La. C.C. art. 2435.
  • 7La. C.C. art. 2436.

5.6 Effect on Public Benefits

5.6 Effect on Public Benefits aetrahan Thu, 06/22/2023 - 12:36

Inheriting the assets of a succession may have a negative effect on any public benefit received by an heir or legatee. Many public benefit programs have an asset limit and exceeding that limit can create ineligibility for the assistance, at least for a period of time. For example, inheriting a share in a family home worth only a few thousand dollars can endanger the receipt of SSI and Medicaid benefits for disabled or elderly persons, unless the recipient or a co-heir (who does not own another residence) is residing in the property. This is a particular concern for nursing facility residents since their care must usually be financed by Medicaid.  Housing assistance can also be affected by a succession. There are exceptions to the asset-limit rules, and the attorney should look at the regulations for the specific program or consult an attorney conversant with those rules in order to advise the client about the effects of the succession. This issue may arise in the situation where a forced heir inherits due to permanent disability. Ironically, the forced heirship laws designed to protect such disabled persons could end up creating a period of ineligibility for their health care programs. 

Donating inherited assets to others or renouncing a succession may also affect an heir’s eligibility for SSI, Medicaid payments for nursing home care, and other public assistance. There are some options for establishing a Medicaid trust to protect an heir’s eligibility for Medicaid and SSI. Often this must be done as part of a will to avoid adverse consequences. Working with a reputable trust company is generally the best option for clients who are interested in a Medicaid trust.