The portion reserved for the forced heirs is called the forced portion, or legitime, and the remainder is called the disposable portion.1 Since 1982, donations inter vivos and mortis causa may not exceed 3/4ths of the donor’s property (if the donor leaves one forced heir at death) and 1/2 if the donor leaves two or more forced heirs.2 Be sure to apply the forced heirship law in effect at the time of the decedent’s death.3 Prior to 1982, the forced portion was 1/4 for 1 child, 1/2 for 2 children, and 2/3 for 3 or more children.
Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent’s estate to which the forced heir would succeed by intestacy, then the legitime equals the fraction due an intestate successor.4 For instance, if a decedent leaves five children, one of whom qualifies as a forced heir, the forced portion is 1/5 of the estate rather than 1/4. When calculating the forced portion, all donations made by the decedent within the last three years of life are included in the decedent’s property.5
A donation that impinges on the legitime is not null but is merely reducible to the extent necessary to eliminate the impingement.6 For example, if a husband’s will leaves all of his property to his wife and there is a forced heir who is entitled to one-fourth, the legacy to the wife is reduced to the disposable portion (3/4) in full ownership and a usufruct for life, with the power to dispose of nonconsumables, over the forced portion, because that usufruct could have been left to her expressly under La. C.C. art. 1499. This is the maximum extent to which reduction is needed to eliminate the excess that impinges upon the legitime, since the decedent could legally have made such a bequest to his surviving spouse. No further reduction is necessary or appropriate.7