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Update on Forced Heirship

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.