5.2 Representation

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.