Louisiana law is fairly clear on how your estate will be distributed if you die intestate. To be “intestate” literally means “without a testate” or a will. The most common reason that people fail to plan for their estate is that they simply don’t get around to it. Life gets in the way. Our lives are so busy, sometimes time just runs out.
If the deceased person (the DECEDENT) is married with children, and intestate, this is what the law dictates-
The spouse gets USAFRUCT over the decedent’s portion of the COMMUNITY PROPERTY. The decedent’s portion is equal to one-half of the value of all of the community property. The community property consists of everything that the couple amassed during their marriage- real estate, vehicles, bank accounts, retirement accounts, furniture, jewelry, etc.
Usafruct gives the spouse the right to use the property and gather the “fruits” from the property. The “fruits” of the property would include rental income, business profits or crops to be harvested. But the right of usufruct does not allow the spouse to sell the property without the permission of those who have the rights of NAKED OWNERSHIP.
The children of the decedent would receive the NAKED OWNERSHIP of the deceased parent’s share of community property. That means that they have ownership rights, but not the right to use the property or obtain the fruits.
Things usually not included in the community property would be any asset acquired before the marriage or anything inherited by one of the parties. These items are considered SEPARATE PROPERTY. The separate property of the decedent would be transferred in full-ownership, directly to the children of the decedent.
The spouse’s usufruct over the decedent’s half of the community would last until he or she dies OR REMARRIES. If the spouse remarries, they lose the usufruct and the children then come into full ownership of the decedent’s estate. This is when unintended consequences can occur. The children would then have the right, if they choose, to force their parent or step-parent to turn over full ownership of the decedent’s estate- even if that means that the home and property must be sold.
This scenario is more likely to occur when the surviving spouse is not the natural parent of the decedent’s children. The situation can become even more complex when each spouse has separate children from previous marriages.
Of course, the best way to assure that your estate is distributed according to your wishes is to have a comprehensive estate plan. Your estate plan should be done with the assistance of an attorney who is experienced in estate planning and who can discuss the variety of options available with wills and/or trusts.
Because life sometimes gets in the way, you would be wise to remember that it is never too early to plan for the future of your estate.