Louisiana Successions: What Happens to Property When Someone Dies

By Donald J. Melancon, Attorney at Law

Louisiana calls it a succession. Everywhere else in the country it is called probate. The difference is not just vocabulary — Louisiana’s civil law tradition produces inheritance rules that genuinely differ from the other forty-nine states, which is why advice found online is so often wrong here. Here is a plain-English orientation.

Community property changes the starting point

Louisiana is a community property state. Property acquired during a marriage is generally community property owned one-half by each spouse, while property owned before the marriage or received by gift or inheritance is generally separate property.

This matters immediately, because when a married person dies, the succession is not dealing with “their house.” It is dealing with the decedent’s one-half interest in a community house. The surviving spouse already owns the other half and did not inherit it. Sorting out which assets are community and which are separate is often the first real work in a succession.

Forced heirship

This is the rule that surprises people from out of state. In Louisiana, certain children — forced heirs — cannot simply be disinherited. The category covers children who are 23 years old or younger at the time of the parent’s death, and children of any age who, because of mental incapacity or physical infirmity, are permanently incapable of caring for themselves or administering their own affairs.

A forced heir is entitled to a portion of the estate called the legitime, and a will that ignores it can be challenged. There are recognized grounds for disinherison, but they are specific and must be stated properly. A will drafted under another state’s assumptions frequently collides with this rule.

Usufruct

Louisiana splits ownership in a way most states do not. A usufruct is the right to use property and take its fruits — to live in the house, to collect the rent — while someone else, the naked owner, holds the underlying ownership.

By default, when a spouse dies without a will leaving community property and children, the surviving spouse commonly receives a usufruct over the decedent’s share, with the children as naked owners. It is a sensible default, and it is also a frequent source of family friction, because the spouse can occupy the home while the children hold ownership on paper and neither side can easily act alone. A will can modify the usufruct — for example, extending it for life — which is one of the better reasons to have one.

With a will and without one

If there is a valid will, the succession is testate and the estate is distributed according to it, subject to forced heirship. Louisiana recognizes specific will forms with strict execution requirements, and a will that is defective in form can fail entirely no matter how clear the intent was.

If there is no will, the succession is intestate, and the Civil Code’s order of inheritance applies — which generally sends separate property to children, then to siblings and parents, and community property to children subject to the surviving spouse’s usufruct. It rarely matches what people assume, and it almost never matches the assumption that the surviving spouse simply gets everything.

Not every succession is a court battle

Several simplified paths exist. A small succession can sometimes be handled by affidavit, without a full court proceeding, where the estate’s value falls under the threshold set by statute and the other statutory conditions are met. Where administration is needed, an independent administration — authorized by the will or consented to by the heirs — lets the executor act without seeking court approval for each individual step, which saves a substantial amount of time and expense.

A straightforward succession where everyone agrees can move in a few months. What extends it is conflict among heirs, property in more than one parish or state, a business interest, unclear title going back generations, or a will whose validity is contested.

The cost of waiting

Families often postpone opening a succession, and the property sits in limbo. It cannot be cleanly sold or mortgaged, because a title examiner will find the break in the chain. Each generation that passes without a succession multiplies the number of heirs whose signatures are needed later. Successions left undone for decades are common in Louisiana and are far more expensive to fix than they would have been to open.

For purposes of compliance with the Louisiana Rules of Professional Conduct, the attorney responsible for this content is Donald J. Melancon (105 Field Street, Belle Chasse, Louisiana 70037).