What is forced heirship?
- In Louisiana, forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age, who because of mental incapacity or physical infirmity, are permanently incapable of taking care of their person or administering their estate at the time of the death of the decedent. Grandchildren may be forced heirs of their grandparents if their parent dies prior to age 24 or if the grandchild is disabled (La. Civ. Code Ann. art. 1493). A descendant who is permanently incapable of taking care of their person or administering their estate includes a descendant who, at the time of death of the decedent, has, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their person or administering their estate in the future (La. Civ. Code Ann. art. 1493(E)).
What are forced heirs entitled to?
- Forced Heirs are entitled to the legitime. The forced portion (the legitime) is one fourth (25%) of the estate assets if there is one forced heir (excluding life insurance, qualified plans and IRAs). If there is more than one forced heir, the forced portion is one half (50%) of the estate assets. However, if the fraction used to calculate the forced portion is greater than the fraction of the decedent’s estate that the forced heir would receive if the decedent died intestate, the forced portion is calculated using the fraction of an intestate successor (La. Civ. Code Ann. arts. 1494, 1495). For example, Thibodaux dies leaving five children, one of which is a forced heir. The normal rule calculates the forced portion as one fourth (25%) of the estate However, because Thibodaux died leaving five children, the forced portion is one fifth of the estate assets.
- Excluded from the calculation of the active mass to determine the legitime are life insurance policies benefits and premiums paid, deferred compensation plans, and qualified retirement accounts (La. Code Ann. art. 1505). These are valid beneficiary designated assets and, as such, non-probate assets.
- The forced portion may be left in trust or burdened with a usufruct in favor of the surviving spouse (La. Civ. Code Ann. art. 1496).
How does forced heirship affect public benefits?
- Thus, a child or grandchild (by representation) of any age who is disabled may be a forced heir. If a person with a disability receives assets, including their legitime, that causes their countable assets to exceed $2,000, they may be disqualified from SSI and Medicaid.
- Due to Louisiana’s forced heirship laws, an unplanned inheritance may cause a child with a disability to lose their SSI and SSI-linked Medicaid.
- Consider the problems of the first spouse dying intestate with a disabled, mentally incompetent child. The surviving spouse’s usufruct ends upon death or remarriage and cannot sell non-consumable property (e.g. real estate) without the naked owner’s (the disabled child) consent. Who will sign on behalf of the individual with a disability if the family home is to be sold or refinanced?