5.5 The Marital Portion

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.