What is Louisiana Forced Heirship?
The Balance’s recent article entitled “What is Forced Heirship?” explains that this is a succession and estate planning concept peculiar to Louisiana.
Unfortunately, too many financial professionals, and even attorneys (believe it or not, even some attorneys that draft wills for their clients), give short shrift to this still very important Louisiana legal concept. Let me say this clearly: Forced heirship in Louisiana has not been repealed. It represents a pitfall for many Louisiana residents, their attorneys, and their financial advisors.
Through legislation, forced heirship was scaled back in the 1990s to cover by default any child that was under the age of 24. However, still included in the definition of “forced heirs” are children of any age that have a physical or mental condition or disability such that the disability could potentially render the child from caring for himself or his estate. That is broad and relatively nonspecific terminology, and it is the language of a lawyer’s dreams.
What does this mean for forced heirship in Louisiana? Louisiana Courts of Appeal have ruled that a daughter with bipolar disorder (sometimes referred to as a person who suffers from manic-depression), even though she was an adult child over the age of 24, and even though she functioned fine with appropriate medication, was a forced heir because her bipolar could potentially render her incapable of caring for herself (her person) or her estate (her “stuff” or possessions). Keep in mind that she was fine with medication, and the Court of Appeal ruled that she was nevertheless a forced heir.
You can imagine how a court might rule in the context of a person with heart disease, COPD, rheumatoid arthritis, or any other type of serious physical or mental ailment. Each case is fact specific to the person who argues he or she is a forced heir.
When it comes to Louisiana forced heirship, the reader should keep in mind that as people live longer, it is not uncommon for me to consult with clients who want to disinherit children who themselves are in old age with significant physical health conditions (not to mention mental health conditions). It is not uncommon for a client in his 70s or 80s to have a child from a prior marriage who is in their 50s or 60s (that they wish to disinherit) who suffers from some significant physical or mental ailment.
Also keep in mind that the physical or mental ailment must be in place at the time of the parent’s death to prove one’s status as a forced heir, and the presumptive forced heir should have enough of a documented medical history to substantiate that the condition was present at that time.
If a person can substantiate his or her status as a “forced heir”, the Louisiana forced heir can make a claim in the succession of the parent, even is the forced heir was disinherited.
Defenses to forced heirship for the succession of the parent can include certain very limited fact patterns. See Louisiana Civil Code art. 1621. These include, among others:
- The child has used physical violence of some sort against the parent (including but not limited to attempted murder);
- The child is guilty of cruel treatment against the parent;
- The child has used threats against the parent to hinder the parent from executing a last will and testament; or
- The child, after reaching adulthood, has failed to communicate with the parent for a period of two (2) years;
However, in most cases, these defenses are not present.
Are there any other defenses to Louisiana forced heirship that a good estate planning attorney can draft into your estate planning documents to discourage a Louisiana forced heirship claim by a litigious heir? Yes. But your attorney must know about them. Many don’t.
The estate planning attorney should be well versed in the secrets of Louisiana estate planning law, because there are some primary tools that the good estate planning attorney can use for you to discourage (or limit) a forced heirship claim.
A properly drafted last will and testament or living trust can have these defensive provisions drafted into them, and even if the child could potentially substantiate their claim as a forced heir, it would put the succession in the position of being able to negotiate a settlement with the forced heir. That is because the forced heir, like most plaintiffs, wants cash now. The prospect of the forced heir receiving something, much later, even after their death, is not an attractive prospect.
But these provisions must be put into your estate planning documents by a qualified estate planning attorney. If Louisiana forced heirship is a concern, don’t default to making your own estate plan. Seek out a qualified Louisiana estate planning attorney, preferably one that is Board Certified in Estate Planning and Administration.
Keep another thing in mind. If your child is under the age of 18 (a forced heir by default), and you have an ex-spouse that would get sole custody of your child, that ex-spouse will be entitled to manage your assets that are inherited by your child. That ex-spouse would be entitled, under default laws of Louisiana, to effectively use up the assets of your child who is a forced heir. Don’t let this happen. You can protect your assets in these situations as well, but you need an estate plan crafted in a particular way.
Special Needs Planning is something else to consider. Many clients do not want to disinherit a forced heir, who is often a disabled child. A disabled child is effectively a forced heir by default. The portion going to the forced heir could result in the child being denied Medicaid or other government benefits. This is because Medicaid will generally require that a recipient have $2,000 or less in assets to receive benefits. Clients who do not want to disinherit a disabled child, but don’t want their children denied these benefits, which have often been received by the child for much of the child’s life, should have a specific estate plan that includes a Special Needs Trust (also called a Supplemental Needs Trust, or an SNT). Talk to a qualified estate planning attorney today to discuss setting up an inter vivos or testamentary Special Needs Trust for your disabled or special needs heirs.
To learn more about estate planning topics particular to Louisiana, read these articles: Affidavit of Small Succession in Louisiana and Is My Will Void If I Get Divorced? and How Do I Write a Will? This additional article might interest you: What Is the Required Minimum Distribution for 2021?
BOOK A CALL with me, Ted Vicknair, Board Certified Estate Planning and Administration Specialist, Board Certified Tax Law Specialist, and CPA to learn more about estate planning and asset protection. If you are a forced heir that has been disinherited, and your parent was penny wise and pound foolish when it came to their estate plan (your parent didn’t have an attorney that knew about the secrets referred to in this article), contact me to assert your rights as a forced heir. If you are a parent that may have one or more forced heirs, contact me today to put my defensive provisions into your estate plan.
Reference: The Balance (Feb. 13,2021) “What is Forced Heirship?”