Generally, the estate in an intestate succession passes to the decedent’s descendants, but ownership of any community property is subject to a legal usufruct in favor of the decedent’s surviving spouse.1  If there are no descendants, then the surviving spouse succeeds to the decedent’s share of community property and the decedent’s siblings succeed to separate property subject to a usufruct in favor of the decedent’s parents.2  Thus, the proper classification of the decedent’s property—separate or community—is a vital part of determining the rightful heirs.

• 1La. C.C. arts. 888, 890.
• 2La. C.C. arts. 889, 891.

Louisiana is a community property state, meaning that each spouse owns an undivided 1/2 interest in most property obtained by married persons.1  The following community property rules apply to property acquired after 1979.2

Property of married persons is either community or separate.3  Property in the possession of a spouse during marriage is presumed to be community.4  In most cases, property acquired during marriage will be community property. But there are exceptions such as property acquired by a spouse by donation or inheritance to that spouse individually; that property is the spouse’s separate property.5

The community property regime begins upon marriage and terminates with death or divorce.6  In a divorce, the community property regime is generally terminated retroactive to the filing date of the petition upon which the divorce was granted. This means that the community property converts to separate property on that date. Sometimes property will be divided between a divorcing couple, either in the divorce proceeding, in a separate partition proceeding, or by private agreement. It is not unusual, however, for divorcing couples to not address property issues in their divorce. In that case, the divorced spouses continue as co-owners, each owning a 1/2 undivided interest in the former community property, which is now classified as separate property.7

Louisiana community property laws apply to spouses domiciled in Louisiana regardless of their domicile at time of marriage.8  However, some marriages may be the subject of matrimonial agreements establishing a separate property regime or a modified community/separate property regime.9

Immovable property in Louisiana is generally governed by Louisiana law regardless of the acquiring spouse’s domicile at time of acquisition.10  The nature of immovable property in another state acquired during the marriage is determined by reference to the Louisiana Civil Code articles on Conflicts of Law.11

Community property includes:

• property acquired during the marriage through work or effort of either spouse or with community property or with community and separate property.
• property donated jointly to the spouses.
• fruits of community property.
• fruits of separate property.
• damages awarded for loss of community property.
• all other property not classified by law as separate property.12

Separate property includes:

• property acquired by a spouse before establishment of community regime (unless changed by a subsequent act).
• property acquired by a spouse by inheritance or donation to that spouse individually.
• property acquired by a spouse with separate property or with separate property and community property where the value of the community property is inconsequential compared to the value of the separate property.
• damages for personal injuries sustained by a spouse during the community.13

Use of community property to improve separate property or pay a mortgage on separate property may give rise to a claim by one spouse against the other for reimbursement.14  Claims for reimbursement are claims against the other spouse’s patrimony; they do not confer automatic ownership rights or change the classification of the property. For example, a spouse may own separate immovable property bought before a marriage, but the mortgage is paid with community funds during marriage. The other spouse does not acquire an ownership interest in the separate property but instead has a claim for reimbursement of 1/2 of the community funds used to pay the mortgage on the separate property.15  Conversely, satisfaction of a community obligation with separate property also gives rise to a claim for reimbursement.16  Spousal reimbursement claims prescribe ten years from termination of the marriage.17

The above rules are “default” rules in the absence of any matrimonial agreement. Matrimonial agreements or spousal donations may affect the classification of property as community or separate.18  Be sure to ask about matrimonial agreements, donations of community property, or transfer of separate property to the community.

• 1La. C.C. art. 2336.
• 2For property acquired before 1979, wives were allowed to declare property as separate property without the concurrence of the spouse. This declaration was usually made in the act of sale. Before 1989, men were allowed to manage community property without the consent of their wives. So, sales with only the husband’s signature would still be classified as community property. Make sure you know the dates of the marriage so you can determine whether property is community or separate in these older cases.
• 3La. C.C. art. 2335.
• 4La. C.C. art. 2340.
• 5La. C.C. art. 2341.
• 6La. C.C. art. 2356.
• 7La. C.C. art. 2369.1.
• 8La. C.C. art. 2334.
• 9La. C.C. arts. 2328–2333.
• 10La. C.C. art. 3524.
• 11See La. C.C. arts. 3523–3527.
• 12See La. C.C. arts. 2338­–2339.
• 13See La. C.C. arts. 2341, 2344.
• 14La. C.C. arts. 2358, 2364, 2366, 2368.
• 15La. C.C. art. 2358.1.
• 16La. C.C. art. 2365.
• 17La. C.C. art. 3499; see also Birch v. Birch, 45,702 (La. App. 2 Cir. 11/03/10), 55 So. 3d 796.
• 18La. C.C. arts. 2328, 2343–2343.1.

During marriage, each spouse owns an undivided 1/2 interest in the community property. When a spouse dies, the survivor’s 1/2 undivided interest in the community property is instantly converted to separate property. The decedent-spouse’s 1/2 interest in the community property devolves according to the following rules.

If the deceased leaves descendants, they acquire the decedent’s 1/2 interest in the community property as naked owners subject to the surviving spouse’s usufruct under La. C.C. art. 890. This legal usufruct over the former community property terminates when the surviving spouse dies or remarries.1  Although security is required from the usufructuary to protect the naked owners’ rights,2  this requirement is waived in most situations.3  However, security is still required if the naked owner is not the usufructuary’s child or is both the usufructuary’s child and a forced heir.4

If the decedent died without descendants, the surviving spouse acquires the decedent’s 1/2 interest in community property and owns the entire former community property outright as separate property.5

• 1La. C.C. art. 890.
• 2La. C.C. art. 571.
• 3La. C.C. art. 573.
• 4La. C.C. art. 573(A)(2).
• 5La. C.C. art. 889.

Separate property devolves to the heirs, who are divided into five classes that inherit in order of priority. Represented schematically, the priority of inheritance is as follows:

1. Descendants (children and their descendants)
2. Parents and siblings (and their descendants)
   • If there are siblings (or their descendants) and a surviving parent or parents, the siblings inherit subject to a joint and successive  usufruct in favor of the parents.
   • If there are siblings and no surviving parents, siblings inherit free of usufruct.
   • ​​​​​​​If there are no siblings (or their descendants), the surviving parent or parents inherit.
3. Surviving spouse (in the case where the decedent was married at the time of death but had separate property)
4. More remote ascendants (e.g., grandparents)
5. More remote collaterals (e.g., aunts, uncles, cousins)

Relatives in the most favored class inherit to exclusion of other classes. Subject to the principles of representation, the nearest relation in a class, determined by counting degrees, inherit to the exclusion of more distant relatives in that class. If there are many heirs, it may be useful to draw a “family tree” diagram to clearly determine who inherits.