How Forced Heirship Works
The term “forced heirship” is not used anywhere in the U.S. except in Louisiana. This state has a law that prohibits disinheriting a child who is 23 years old or younger, is permanently disabled or incapacitated, or cannot otherwise care for themselves.
Forced Heir Portions
In Lousiana, an estate is divided into two portions—the amount due to the forced heir(s), called the “legitime,” and a portion called the “disposable portion,” which follows intestacy laws or is distributed per the deceased’s wishes. The legitime, or forced portion, is 25% of the estate if there is one child. The rest goes to the disposable portion. If there is more than one child, the forced heirs receive equal portions of 50% of the estate. Two or more surviving children must share half as collectively forced heirs. In addition, there are some legal grounds for disinheritance, and most involve violence against the parent.
Representation
The forced heir law in Louisiana also dictates that if a forced heir dies before the decedent and that heir had a child, the child would inherit that heir’s portion only if the decedent were to die before their child would have reached 24 years. For example, imagine your son had a child at age 21 and was then tragically killed in a car accident. You survived your son, and his child is now the forced heir, no matter how old they are when you pass away. In the same scenario, if you died one year after your son, his child would be the forced heir and receive his portion of your estate, because you died before your son would have reached 24 years. If your son died after the age of 24, his child cannot be a forced heir unless they are permanently mentally or physically incapable of managing their estate and caring for themselves.
Limitations
It’s important to understand that not many people will fall under the forced heir category. To summarize the points made previously, a forced heir:
Has a parent who died before the heir reached the age of 24, orIs permanently disabled mentally or physically such that they cannot care for themselves, orIs someone whose grandparent died before the parent reached 24 years, and whose parent died before reaching age 24
Alternatives to Forced Heirship
While forced heirship cannot be bypassed, there are specific cases in which you can restrict an estate—usufruct, legitime trust, and survivorship requirement.
Usufruct
You can establish usufruct—a limited right to use the estate you leave behind. Typically, the usufruct is granted to spouses over the forced portion on an estate so that the spouses are free to inhabit and use the estate. Usufruct doesn’t absolve the forced heirship—the heirs still own their portions of the estate; however, the usufructuary can use the forced portion until the usufruct expires or they pass away. The forced heirs are called the “naked owners” and have no rights to the estate being used by the person granted usufruct, other than ownership.
Legitime Trust
The forced portion of an estate can be left in a trust—this is called a “legitime trust.” For the trust to be legal, it needs to:
Distribute all income to the forced heir for education, health, support, or estate maintenance purposes.Have no other conditions applied to the estate except usufruct or interests of a primary beneficiaryExpire upon the death of the forced heirDistribute all principal to the forced heir when the trust terminates
Survivorship Requirement
Common in many estate plans, a survivorship requirement states that the beneficiary must live for a specific time after the grantor dies, to receive any inheritance. Under successional laws that include the forced heirs, the decedent can create a provision for their estate in which the forced heir can only receive their portion if they survive for six months after the grantor’s death.
