Forced Heirship and Collation:
Forced heirship is unique to Louisiana and can dramatically impact your estate plan. Likewise, collation can have a profound impact on the forced portion and on your succession proceedings. Forced heirship is designed to prevent a person from disinheriting certain children or grandchildren. It was born under the presumption that parents desire to treat their children equally.
What is forced heirship?
Per La. Civ. Code art. 1494, a forced heir must receive a portion of their parent’s estate. This is so regardless of a will or trust to the contrary. For example, if a will leaves everything to one child, and another child is a forced heir, the latter child must receive a portion of the estate regardless of the will.
Per La. Civ. Code art. 1493, forced heirs include:
- Children under the age of 24;
- Children of any age who have a physical or mental impairment that renders them unable to care for themselves or administering their estate; and
- Grandchildren of the decedent whose parent predeceased the decedent, and who is under the age of 24 or permanently incapacitated at the time of the decedent’s death;
- Children who have an inherited incurable disease that may render them incapacitated in the future.
The portion of the parent’s estate that a forced heir is entitled to is known as the “legitime” or more commonly referred to as the “forced portion.” The remainder of the estate is called the “disposable portion.” The forced portion goes to the forced heirs, and the disposable portion is otherwise distributed according to the decedent’s will or by the laws of intestacy. If a forced heir renounces the succession, their legitime passes to the disposable portion of the decedent’s estate rather than to any other forced heirs.
Per La. Civ. Code art. 1495, if the decedent has only one forced heir, the forced portion will be 25 percent of the estate. If the decedent has more than one forced heir, the forced portion will be half of the estate. However, each forced heir is entitled to no more than would be received through intestacy, per La. Civ. Code art. 1495.1. For example, if there are five total children and only one of them is a forced heir, the forced portion will be 20 percent instead of 25 percent.
Per La. Civ. Code art. 1505, to calculate the amount of the forced portion, first the total value of the decedent’s entire estate must be determined. The debts of the estate are subtracted from the total, and then the value of any donations made in the three years prior to the death are fictitiously added back to the estate. The amount of the forced and disposable portions can then be calculated accordingly. When determining the decedent’s entire estate, insurance policies and retirement benefits are not included in this amount. However, any life insurance proceeds or qualified retirement benefits paid to the forced heirs will count toward satisfaction of the forced portion.
What is collation?
Per La. Civ Code art. 1227, the “collation of goods is the supposed or real return to the mass of the succession which an heir makes of property which he received in advance of his share or otherwise, in order that such property may be divided together with the other effects of the succession.”
It is not uncommon for a parent to give a financial gift to one child but not to other children during their lifetime. Per La. Civ. Code art. 1235, when this happens within the three years preceding their death, forced heirs are entitled to collation. Collation means the lifetime gifts are refunded back to the estate prior to the calculation of the value of the estate and subsequently the value of the forced portion. This refund may be an actual return of the gift or fictitious meaning that the estate is given a credit for the value of the gift.
Collation is founded on the presumption that parents intend to benefit each of their children equally. Essentially, anything that the decedent left to an heir within three years before death is treated as an advancement of that heir’s inheritance. Lifetime gifts made more than three years prior to the decedent’s death are not subject to collation.
Effect on estate planning:
First, when crafting a will or testamentary trust, one should determine if they have forced heirs and should be sure to leave adequate assets to satisfy the forced portion. The benefit of taking forced heirship into account is that the testator may provide in his or her will that certain assets will be used to satisfy the legitime, or the testator may delegate that authority to the executor of the estate. Otherwise, it will be left to the court to decide, but it most instances the forced heir will receive an undivided percentage of all the assets.
Another consideration is a collation clause. A testator can state in their will that lifetime gifts are exempt from collation. The existence of this clause may prevent qualified forced heirs from making a successful collation claim as to the return of the actual gift. However, per La. Civ. Code art. 1231, the exempted donations cannot exceed the amount of the disposable portion. Thus, the value of the donations is still factored into the calculation of the amount of the forced portion regardless of a collation clause.
A testator can also restrict forced heirship by properly planning their estate. La. Civ. Code art. 1496 provides for the forced portion being burdened by usufruct or trust. A testator is free to give a spousal usufruct over all property including the forced portion. Further, a legitime trust can be created to restrict the forced portion, but certain requirements must be met. Likewise, a special needs trust is a specific type of trust that is commonly used in this situation to ensure that the forced heir doesn’t lose any disability benefits due to receiving an inheritance.
Can a forced heir be disinherited?
It is possible to disinherit a forced heir for certain egregious actions by the would be forced heir. The parent must identify the heir and the reason, and expressly disinherit the child in the will.
Per La. Civ. Code art. 1621, a parent may disinherit a forced heir if the child:
- Has raised his or her hand to strike a parent, or has actually struck a parent; but a mere threat is not sufficient;
- Has been guilty, towards a parent, of cruel treatment, crime, or grievous injury;
- Has attempted to take the life of a parent;
- Has falsely accused a parent of committing a crime for which the law provides that the punishment could be life imprisonment or death;
- Has used any act of violence or coercion to hinder a parent from making a testament;
- Has married, as a minor, without the consent of the parent;
- Has been convicted of a crime for which the law provides that the punishment could be life imprisonment or death; or
- Has failed, as an adult, to communicate with the parent without just cause for a period of two years, unless the child was on active duty in any of the military forces of the United States at the time.
What happens when a forced heir is left out of a will?
When a forced heir is simply left out of a will and not expressly disinherited for cause, the forced heir has a right to challenge the probate of the will. It may be self-evident if they are under 24 years old, and the court could recognize it on its own. However, if the forced heirship is based on an incapacity, the court may not have any way of knowing about it until the forced heir challenges the probate or one of the legatees voluntarily brings it to the court’s attention.
Louisiana succession and estate planning attorneys:
We are a Gretna law firm that has served the New Orleans area since 1980. Our succession attorneys can help guide you through the succession process when forced heirs are involved. Further, our estate planning lawyers can help draft your estate documents to address these issues on the front end. 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.