In Louisiana, when a person who is set to receive property from a decedent, the person who died, renounces their inheritance, the property passes to another person. If there is a will, the property is distributed according to the terms of the will.
If there is no will, meaning the person died intestate, the property goes to the next person designated by the intestacy statutes as the correct recipient. Louisiana statutes treat a person who renounces an inheritance as if that party were deceased.
Provisions Regarding Renunciation
The Louisiana Civil Code has a number of statutes that explain the intricacies of renunciation in succession. Succession is the process of inheriting property, and a successor is a person who inherits property. A successor typically has six months to renounce, or disclaim, their inheritance.
Article 887 of the code provides that a person who renounced their right to succeed may still enjoy the right of representation. The renouncer does so with respect to the person who is next in line to receive assets and did not renounce their right to succeed.
Right of Representation
The term "right of representation" means that assets are divided equally by every branch of the family that has surviving descendants. For example, if a deceased person leaves property to their three children, each child takes one-third of the property. A successor is not obligated to accept all rights to succeed. They may accept some rights and renounce others.
Renouncing a Prescription
To renounce a prescription, an individual must have the capacity to alienate. Prescription is the acquiring of an easement by using the property. For example, a neighbor with an easement to use a shortcut through an owner’s woods to reach the main road has a prescription.
The term “alienate” in real property law means to voluntarily sell or give title of property to another party.
The statute regarding prescription essentially means that in order for a party to renounce a prescription on property, that party must have sufficient title over the property to be able to sell the property. If a party owned only a quarter of a parcel of real property, they will have trouble renouncing a prescription on the real property.
Why Renounce Property?
A party does not have to provide a reason for renouncing any type of property, real property, personal property or money. They can renounce property for personal reasons, such as not wanting to accept gifts from a relative.
A party can also renounce property for financial reasons – a party who accepts property through an inheritance will be responsible for taxes on the property.
How to Renounce Property
When a beneficiary or heir takes no action, the court will award them the inherited property. The term property applies to all types of property, including real property, personal property and money.
A party must renounce the inheritance in writing for the renunciation to be effective. Louisiana used to require that the renunciation be done before a notary and two witnesses, but this is no longer mandated.
A beneficiary or heir must complete a disclaimer of interest form and deliver it to the personal representative of the decedent’s estate within nine months of the death of the decedent. Alternatively, the party inheriting property can file the document with the court that has jurisdiction over the decedent’s estate.
Recording a Disclaimer with the Clerk of Court
If the decedent left real property to an individual, they should record their disclaimer of interest with the clerk of court of the parish in which the property is located. This ensures that the person named to receive the property does not look like they have title to the property.
A successor could seem to have title to the property if documents available through public records name them as being awarded the property. A disclaimer helps clear up that misconception.
Direction of Property by Beneficiary
A party who renounces property cannot ask that the property go to a person or entity of their choice. For example, a beneficiary who renounces property cannot ask that the property go to their favorite charity. A beneficiary who wants to ensure that the property goes to the charity must accept the property and give it to that charity.
No Attachment by Creditors of Beneficiaries
A creditor of a beneficiary or heir who has renounced the property cannot attach or collect the property to satisfy the recipient’s debt.
Louisiana’s Homestead Exemption
The homestead exemption is a tax break on the home in which a person resides. A homestead exemption can help a party with the tax burden of a property left to them in an inheritance. In order to qualify for this exemption, the party must own and occupy the house as their primary residence by December 31st of the applicable tax year.
No single person is entitled to more than one homestead exemption. The maximum value for a homestead exemption is $75,000 of assessed value. If a person with a homestead exemption changes their primary residence, they are required to notify the parish assessor.
After a person qualifies for homestead exemption, they do not need to reapply each year unless there are changes in the title of the property. A homestead exemption does not exempt the property from municipal taxes.
What’s Needed for Succession
In order for a Louisiana succession court to direct the distribution of an estate, the court must receive certain documents, including:
- Last will and testament.
- Name of executor named in the will.
- List of heirs.
- Accounting of assets.
- Debts owed by decedent.
- Financial documents relating to the decedent that come after they passed, including bills, bank statements and receipts.
A succession court typically makes its determination within a few months to a year after the decedent’s death.
Distribution of Property in an Intestacy
When there is a will, the property goes to the parties named in the will as beneficiaries, unless the will is invalid. Then the property will be distributed according to Louisiana's intestate succession statutes. The order of inheritance when there is no will or an invalid will depends on whether the property is community property or separate property.
Community Property and Separate Property
Separate property is property that a spouse owns before marriage, property inherited by a spouse during marriage, or property given to one spouse during marriage.
Community property is property that either of the spouses acquires during the marriage, unless it falls into one of the exceptions above for separate property.
If the spouses formed a prenuptial agreement, called a marriage contract in Louisiana, they may have excepted certain pieces of property from becoming community property. Typically, each spouse owns half of the community property while the parties are married.
Usufructs and Real Property
In Louisiana, the right to use property, such as to rent it to others and receive the fruits or income from it is called a usufruct. A person who inherits such a right is called a usufructuary. Say Person A inherits a usufruct; Person B could inherit the underlying right to own the property if Person A died. The underlying right is called “naked ownership.”
The naked owner, Person B, can sell or mortgage their rights in the property. This has no effect on the rights of Person A, who can continue to live there. If Person A dies, Person B becomes the full owner.
If a married person dies intestate, the surviving spouse inherits a usufruct over the deceased’s spouse's one-half of community property until the surviving spouse dies or remarries.
Who Are Legal Heirs?
Under Louisiana's intestate succession laws, community property first goes to a party’s children or their descendants, if the children are dead. The usufruct for property such as a home will go to the surviving spouse.
If there are no children or descendants of children, the community property will go to the surviving spouse. If there is no surviving spouse, the estate will be treated as separate property.
As to separate property, the property goes first to children or their descendants, if the children are dead. If there are no children or descendants of children, the separate property will go to the siblings of the decedent. If the siblings of the decedent are deceased, the property will go to the descendants of the siblings with a usufruct to the living parents.
Heirs Can Include Non-biological Descendants
The living parents of the siblings may be a widowed spouse or adoptive parent of the descendants of the siblings rather than biological siblings of the decedent.
Sharing Among Siblings, Parents or Spouses
All siblings are entitled to an inheritance unless a will is in place that specifically leaves out a sibling. If there are no siblings or descendants of siblings, then the property will go to the parents of the decedent. If there are no parents, the property will go to the spouse. If there is no spouse, the property will go to the grandparents or ascendants, people in the family in a directly linear relationship to the decedent.
If there is nobody in this group, the property will go to the nearest living relative of the decedent. If there is no nearest relative, the property will escheat to the state of Louisiana.
What Are Forced Heirs?
A forced heir under Louisiana law is a child of the decedent who is under the age of 24 or their older child, who is permanently incapable of taking care of themselves at the time the decedent passed. The lack of capacity can be due to a mental incapacity or a physical infirmity.
If a child is 24 or older comes to lack capacity, they become a forced heir when the event causes them to lose capacity.
A forced heir is entitled to a portion of the decedent’s property even if the decedent left all of their property to someone else, including their spouse. A spouse can leave a lifetime usufruct to their surviving spouse over the forced heir’s portion. Then the surviving spouse can have the maximum use allowed by law.
Role of an Executor
An executor is the person who collects the assets of an estate, pays bills that are due and distributes the estate to a person’s beneficiaries. An executor is the party named in a will to take on these responsibilities. An appointed administrator is an individual appointed by the court to take on such responsibilities when there is no will.
An executor can sell property without the approval of all the beneficiaries. Louisiana’s independent administration law provides that an executor can sell the estate property as soon as the decedent passes, without getting the approval of the court or advertising the sale in a local newspaper.
An executor can typically receive compensation of 2.5 percent of the value of the estate.
Non-probate Assets in Louisiana
Certain assets do not go through succession, or probate, court. These include retirement accounts like a 401(k) with a designated beneficiary, life insurance policies and property held in a living trust. Assets from such accounts and insurance policies are automatically distributed to the beneficiaries after the decedent’s death.
A trustee will distribute property in the trust in accordance with the terms of the trust and the needs of the beneficiaries.
How an Attorney Can Help with Estate Planning
An estate and trust attorney can help a client draft a will, establish a revocable living trust and answer questions from beneficiaries and heirs about such documents. An attorney can also clarify how a party can leave a person assets through insurance policies, investment accounts and bank accounts.
In addition, an attorney can represent an individual in succession court proceedings such as the removal of an executor.
- Louisiana Governor's Office of Elderly Affairs: Probate & Succession in Louisiana
- Louisiana Civil Code: Article 3451 Capacity to Renounce
- Louisiana Civil Code: Article 947 Right of Successor to Accept or Renounce
- Louisiana Civil Code: Article 1742 Acceptance or Renunciation of Succession
- East Baton Rouge Parish Assessor: General Information
- Louisiana Constitution Article 7 Section 20: Homestead exemption
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.