Forced Heirship in Louisiana, Explained

Under Louisiana law, a forced heir is a child who is 23 or younger when a parent dies, or a child of any age who is permanently unable to care for himself or herself or manage his or her own property. Together, a parent’s forced heirs are owed the forced portion: one-fourth of the estate if there is one forced heir, one-half shared among them if there are two or more. Each heir’s share is that heir’s legitime. Apart from planning tools the law allows, a parent can deprive a forced heir of the legitime only by disinheriting the child for one of the specific causes the Civil Code lists. This guide covers Louisiana law; Mississippi has no forced heirship.

Forced heirship is rooted in Louisiana’s civil-law heritage, and it is one of the most misunderstood parts of Louisiana law. A forced heir may not be deprived of the legitime unless the parent has just cause to disinherit him or her (La. C.C. art. 1494). The rest of the estate — the disposable portion — the parent may leave to anyone (La. C.C. art. 1495).

Forced heirship was narrowed, not abolished

The modern rule comes from a 1995 constitutional amendment. That amendment, effective November 23, 1995, abolished forced heirship except for children 23 or younger, and allowed the Legislature to keep it for children of any age who cannot care for themselves or their property because of mental incapacity or physical infirmity (La. Const. art. XII, § 5, as amended by Acts 1995, No. 1321). The Legislature rewrote the Civil Code articles to match, effective January 1, 1996 (Acts 1995, No. 1180), and revised them again in a 1996 special session (Acts 1996, 1st Ex. Sess., No. 77). The constitution leaves the size of the forced portion and the grounds for disinheriting a child to the Legislature, and it allows the forced portion to be placed in trust (La. Const. art. XII, § 5(B)).

A recurring rumor holds that Louisiana “abolished forced heirship.” It did not. The 1995 amendment narrowed it, and it remains the law for qualifying children.

Who is a forced heir?

Forced heirship does not protect all children. A forced heir is a child of the deceased (a “descendant of the first degree”) who, at the time of the parent’s death, is in one of two groups (La. C.C. art. 1493(A)):

• Age 23 or younger. A child counts as 23 or younger until the day he or she turns 24 (La. C.C. art. 1493(D)).
• Any age, if permanently incapable. A child of any age who, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate. This includes a child who, according to medical documentation, has an inherited, incurable disease or condition that may make the child incapable of that care in the future (La. C.C. art. 1493(E)).

Grandchildren qualify only in limited cases. If a child died before the parent, that child’s own children can step into the child’s place as forced heirs in two situations. First, if the child who died first would have been 23 or younger at the parent’s death (La. C.C. art. 1493(B)). Second, for any grandchild who is himself or herself permanently incapable of self-care or of managing his or her property, regardless of how old the predeceased child would have been (La. C.C. art. 1493(C)). Grandchildren do not otherwise qualify.

How much is the forced portion?

The size of the forced portion depends on how many forced heirs there are. Gifts during life and at death may not exceed three-fourths of the estate if the parent leaves one forced heir, or one-half if the parent leaves two or more (La. C.C. art. 1495). So the forced portion is one-fourth with one forced heir and one-half, shared among them, with two or more. Forced heirs of the first degree split it equally (La. C.C. art. 1495.1).

The forced portion is a floor, not a ceiling. A parent may always leave a forced heir more. And a forced heir’s share is never larger than what he or she would have inherited if the parent had died without a will (La. C.C. art. 1495.1).

What property counts in the calculation?

The forced portion is a fraction of a calculated amount, not just of what is left at death. The calculation starts with everything the parent owned at death, subtracts the estate’s debts, and then adds back gifts the parent made within three years of death, valued as of the date of each gift (La. C.C. art. 1505(A)). Gifts made more than three years before death are not added back.

Two large categories are left out:

• Life insurance. Neither the premiums nor the proceeds are included. But proceeds paid to a forced heir are credited against that heir’s forced share (La. C.C. art. 1505(C)).
• Retirement plans. Contributions to and benefits from governmental deferred-compensation plans and plans qualified under Sections 401 or 408 of the Internal Revenue Code are excluded and are not subject to forced heirs’ claims. Benefits paid to a forced heir are credited against that heir’s forced share (La. C.C. art. 1505(D)).

Louisiana’s conflict-of-laws rules also matter. If a parent dies domiciled in Louisiana and leaves at least one forced heir domiciled in Louisiana, the value of the parent’s land in another state counts in calculating the forced portion and in satisfying the legitime, even though that land passes under the other state’s law (La. C.C. art. 3534).

The surviving spouse’s usufruct

A parent can leave a surviving spouse a usufruct — the right to use property and keep its income — over all or part of the estate, including the forced portion (La. C.C. art. 1499). The usufruct lasts for the spouse’s life unless the testament sets a shorter period, and the testament may give the spouse power to dispose of nonconsumable property as the law of usufruct allows (La. C.C. art. 1499). A usufruct over the legitime in favor of a surviving spouse is a permitted burden that does not violate the forced heir’s rights. That is true whether it covers community or separate property, and whether or not the forced heir is the surviving spouse’s own child (La. C.C. art. 1499). The legitime may also be placed in trust (La. C.C. art. 1496).

There is a limit. The legitime may not be satisfied by a usufruct or an income interest in trust alone (La. C.C. art. 1502). The forced heir must still receive ownership, or a qualifying trust interest. A spouse’s usufruct can postpone the heir’s enjoyment of it, sometimes for the spouse’s lifetime.

Can a forced heir be disinherited? Yes — for just cause

A common myth is that a forced heir “cannot be disinherited.” That is wrong. A forced heir loses the legitime if the parent disinherits him or her for just cause, in the manner the Civil Code requires (La. C.C. arts. 1494, 1617). The requirements are strict:

• The disinherison must be in one of the forms required for a testament (La. C.C. art. 1618).
• It must be express and for a just cause, or it is null. The child must be named or otherwise identifiable (La. C.C. art. 1619).
• Only the causes the Code lists count (La. C.C. art. 1620).
• The testament must state the reason, facts, or circumstances that make up the cause, or the disinherison is null (La. C.C. art. 1624).
• The cause must have happened before the testament that disinherits the child was signed (La. C.C. art. 1621(B)).

The Code lists eight just causes for a parent to disinherit a child (La. C.C. art. 1621(A)). In plain terms, the child:

1. Raised a hand to strike, or actually struck, a parent (a mere threat is not enough).
2. Was guilty, toward a parent, of cruel treatment, a crime, or grievous injury.
3. Attempted to take a parent’s life.
4. Without any reasonable basis, accused a parent of a crime punishable by life imprisonment or death.
5. Used violence or coercion to keep a parent from making a testament.
6. Married as a minor without the parent’s consent.
7. Was convicted of a crime punishable by life imprisonment or death.
8. After reaching majority, and knowing how to contact the parent, failed to communicate with the parent without just cause for two years, unless the child was on active military duty at the time.

A grandparent may disinherit a grandchild for most of the same causes when the act was committed against a parent or grandparent, and for a conviction of a crime punishable by life imprisonment or death (La. C.C. art. 1622).

The facts stated in the testament are presumed true. The disinherited child can rebut them by a preponderance of the evidence, but the child’s own unsupported testimony is not enough (La. C.C. art. 1624). The child can also defeat the disinherison by proving, by clear and convincing evidence, that he or she reconciled with the parent after the events. A writing signed by the parent that clearly shows reconciliation is enough (La. C.C. art. 1625). The child may also show that, because of age or mental capacity, he or she did not understand the behavior was wrong, or that it was unintentional or justified (La. C.C. art. 1626). When a forced heir is validly disinherited, that heir’s legitime becomes disposable, and the other forced heirs’ shares do not change (La. C.C. art. 1500).

What happens if a plan ignores forced heirship?

A will or gift that cuts into a forced heir’s legitime is not void. It is reduced only as much as needed to restore the legitime (La. C.C. art. 1503). Only a forced heir, the forced heir’s own heirs or legatees, or an assignee who received the right by an express assignment made after the death can bring that action to reduce, and only after the parent dies (La. C.C. art. 1504). Gifts in the will are reduced first; gifts made during life within the three-year window are reduced after that, most recent first (La. C.C. arts. 1507, 1508). The action to reduce an excessive donation prescribes in five years, and that period is suspended while the forced heir is a minor (La. C.C. art. 3497). When the five years begin can depend on the kind of gift.

Mississippi has no forced heirship

Mississippi has no forced heirship for children. The Mississippi rule closest to it protects a surviving spouse, not children: a spouse for whom a will makes unsatisfactory provision may renounce the will and take a share set by statute (Miss. Code Ann. § 91-5-25). For families with property in both states, see Two-State Succession.

The practical takeaway

Forced heirship is technical, fraction-driven, and unforgiving of plans that ignore it, but it is also navigable with the right structure. A plan built with the forced portion in mind — often using a surviving-spouse usufruct or a trust — can meet the same family goals without inviting a reduction suit later. If you are planning your estate and have a child 23 or younger or a child with a disability, or you believe you are a forced heir whose share was not respected, it is worth getting the details right. You can read more about the firm’s Estate Planning and Successions & Probate work.

To talk about your situation, call (985) 612-7220 or start a confidential intake. You can also contact the firm directly.