Louisiana succession laws concerning the rights of a surviving spouse are some of the most unique in the nation. Succession is the process and procedure of settling a decedent’s estate and distributing the property and any assets after the estate’s debts are paid. The majority of the country refers to this process as probate.
As a community property state, the surviving spouse is entitled to half of the community property. There is no right to an “elective share.” Community property is property acquired while the surviving spouse and decedent were married.
Separate property, alternatively, includes; (1) property owned prior to the marriage; (2) inherited property; or (3) property given to one of the spouses. Absent a will’s provisions to the contrary, a surviving spouse generally will not inherit the other spouse’s separate property.
A Will can change all of this. Through a validly executed will, a surviving spouse may be provided for by his or her now-deceased spouse.
Under Louisiana law, a surviving spouse may also be entitled to usufruct. A usufruct is the right by one person in the property of another. The majority of the United States refers to this as a life estate. Usufructs differ only slightly from the life estate, generally, in that a usufruct may last for a specified period of time. The owner of the property under this arrangement is referred to as a “naked owner” as opposed to a remainderman—as the term is used elsewhere.
A surviving spouse has a usufruct over community property inherited as a result of their deceased spouse’s passing under Louisiana law governing intestate succession. Usufructs may also be created via a lifetime gift or through a devise or bequest in a will.