The Louisiana Legislature passed a joint resolution to amend the Louisiana
Constitution to abolish forced heirship for all decendant’s except
persons twenty-three (23) years of age or under or persons suffering from
mental or physical infirmity. This amendment will be placed on the ballot
at the gubernatorial primary election to be held in October, 1995.
The proposed amendment effectively reinstates the prior legislation effective
on July 1, 1990 which was held by the Louisiana Supreme Court to be unconstitutional.
Passage of this proposed amendment would once and for all put an end to
the turmoil of forced heirship in Louisiana. Defeat of the Legislation
would leave all descendants, with the exception of those properly disinherited,
as forced heirs.
Passage or defeat of this proposed amendment will not however end all of
the problems created for the heirs of individuals who have died during
this period of turmoil. Passage of the proposed amendment will not apply
retroactively. For example, the Fifth Circuit Court of Appeals ruled that
because children are forced heirs a decedent could not encumber his children’s
forced portion with a usufruct or income interest in favor of a spouse
from a different marriage. In 1995 the Fourth Circuit Court of Appeals
in Succession of Becker decided that such an encumbrance was permissible.
This disagreement between the Circuits will have to be decided by the
Louisiana Supreme Court. Until this and other legal arguments are decided
there will continue to be turmoil for the heirs of decedent’s who
died between July 1, 1990 and October, 1995 whether or not the proposed
amendment is passed or defeated.
The good news is that after October, 1995 the law will be finalized and
an estate plan can be developed accordingly.