Why Having a Last Will for Separate Property is Crucial:
It is common for married couples to acquire property prior to the marriage. This property is considered separate property. Because the order of succession is different for community property and separate property, it is imperative to know what will happen to your property if you die without a last will and testament. Often times, the intestate laws are in direct conflict with the actual wishes of the property owner. When that is the case, you should strongly consider creating a will as part of your estate plan.
Classification of Property:
Property of married persons is classified as either separate property or community property. Separate property includes property acquired before the marriage, property acquired with separate things, and property acquired by inheritance or donation. Community property includes property acquired during the marriage with community things, property donated jointly to both spouses, and property acquired through the effort, skill, or industry of either spouse.
Louisiana has a set of default rules that determine what happens to property when someone dies without a will. Under these default succession rules, community property and separate property are treated differently. Community property is inherited first by one’s descendants, subject to a spousal usufruct. If there are no descendants, then the surviving spouse inherits outright.
The default rules for separate property are less favorable to a surviving spouse. When someone dies intestate, their separate property first goes to their children outright. If they do not have children, separate property then goes to their siblings, and if there are no siblings then it goes to their parents. Only if someone dies without surviving children, siblings, or parents will their separate property be inherited by their spouse.
Where Problems Arise:
It is common to have separate assets prior to a marriage. As we determined above, these separate assets are treated differently than community assets. This can be problematic when there is a significant separate asset such as a home or a vehicle that the couple both use as their own during the marriage.
For instance, the husband may own a home prior to the marriage. The couple may live there for many years together, but if he dies without a will, his children, siblings, or parents will inherit that home instead of his wife and they can force her out of what has essentially become her home. In most cases, this is not a desirable result.
The same holds true for other major assets such as vehicles, cash accounts, and businesses. If they are separate assets, the surviving spouse has no rights to them as long as there is one person that fits into one of the higher-ranking classes of heirs.
How to Plan Accordingly with a Will for Separate Property:
When there are significant separate assets, it is crucial to create a last will and testament to protect your spouse’s interests. Luckily, Louisiana law provides several options to help accomplish your goals. One of the first considerations should be how important is it that your lineage eventually receive your property, and to what extent.
If it is of great importance that your children get 100% of your separate assets, but still want your spouse to be able to use the property, then granting him or her a usufruct of that property will accomplish this goal. He or she will still get to live in the house, drive the car, or run the business and enjoy the profits, but full ownership will fall to your children upon his or her death or remarriage.
If you don’t care if your children get your property when your spouse dies, then you can consider leaving your spouse full ownership. This is also a viable option when the only children are children of the marriage, and the couple is past typical child-bearing ages. In that case, it is relatively safe to assume that your children will still inherit full ownership of those separate assets one day, as long as they have a good relationship with the other parent.
Another consideration is to donate a one-half interest in the separate property during your lifetime. This may be the riskiest option as there’s no undoing it. If a divorce comes later or some other dispute, you have already gifted that property. Conversely, this is a viable option in some instances. For instance, when a home is purchased shortly before a marriage and the mortgage is to be paid with community funds, it often makes sense to own the property together.
These are just some of the common considerations. Each person has a unique situation and should discuss their estate plan with a qualified attorney.
Louisiana Estate Planning Attorneys:
We are a Gretna law firm that has served the New Orleans area since 1980. Our estate planning lawyers can quickly analyze your situation and advise you on the classification of your property and make recommendations on how to best carry out your wishes. We take pride in offering a personal and trusted experience. Call us today for a free consultation and find out why so many of our clients come back to us.