Forced Heirship

What is forced heirship?

In Louisiana, forced heirs are children under 24 at the time of death of their parent or children 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 death of their parent. 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)).

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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, an exception known as Greenlaw exception, provides that if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent's estate to which the forced heir would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor.  (La. Civ. Code arts. 1494, 1495). For example, Smith 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 Smith 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.  Civ Code 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).

Issues that may arise with forced heirship 

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.

If the forced heir owns 1/4 of a real estate; however, the heir lacks capacity to contract because of age or infirmity. Then, further legal proceedings will be needed to complete the sale of said real estate.