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