By Shannon Howard-Eldridge
Under existing Louisiana law, there are only limited circumstances under which a certain portion of a deceased’s estate (assets) is reserved for certain descendants of the deceased. A person may be a “forced heir” due to age or disability. In some instances, grandchildren and perhaps even more remote descendants of a deceased could be a forced heir as representatives of a forced heir that predeceased another. An individual forced heir’s portion is called his “legitime.” Louisiana Civil Code article 1495 provides that a decedent may not donate/dispose of more than three-fourths of his property if he leaves, at the time of death, one forced heir or one-half if he leaves two or more forced heirs. The amount reserved for forced heirs is the “forced portion” with the remainder being the “disposable portion.”
Louisiana Civil Code article 1493 provides that a deceased’s children who are “twenty-three years of age or younger” at the time of the deceased’s death are forced heirs. The Code article clarifies that a person is “twenty-three years of age or younger” until they attain the age of twenty-four. La. C.C. art. 1493 D.
Children of a deceased who are not forced heirs by age could remain as a forced heir due to disability or illness. Code article 1493 includes as forced heirs children of any age who because of “mental incapacity or physical infirmity, are permanently incapable of” taking care of themselves or administering their estate at the time of the deceased’s death. The Code article clarifies that the term “permanently incapable of taking care of their persons or administering their estates at the time of death of the decedent” includes decedents who “at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.”
Grandchildren could qualify as forced heirs by representation if the age or disability requirements are met; grandchildren are not forced heirs themselves, but could represent or stand in the place of their parent (the deceased’s child) who was a forced heir at the time of the decedent’s death. For example, if the deceased’s child would have been twenty-three years of age or younger at the time of the decedent’s death, the grandchildren could represent or stand in the place of that forced heir. This would represent rare circumstances as the child of the decedent had to have been twenty-three years or younger and also have become a parent prior to the decedent’s death.
Grandchildren could also qualify as a forced heir by representation regardless of the age of their predeceased parent if that predeceased parent had an illness or disability as defined in Code article 1493. When a disabled child predeceases a decedent, representation takes place in favor of any child of that forced heir (the grandchildren of the decedent who are the children of a forced heir due to disability or illness.)
Modern family dynamics, especially circumstances of blended families, reproductive technology, non-traditional family structures ,and other unique circumstances could create some unique questions for you and your family. You should consult your attorney for advice if you have young children or a child that will qualify as a forced heir due to illness or disability.