Heirship in Successions

Authored By: Lagniappe Law Lab

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Basics on Devolution of Property

Devolution of property is the process of transferring the property of a deceased person to their living heirs. When someone dies without a will, the family member(s) who inherit the decedent's property are called heirs, and this type of succession is controlled by Louisiana law.

One exception to this rule: It is possible to have a will that is partly valid and partly invalid. Any part of a will that is valid will control who the property goes to and any part that is invalid will go to the family members in the order that the law states. 

 

Classify the property to help determine the order of succession to heirs

Property of the deceased person who did not leave a valid Will is inherited by different people based on the classifications of the property. Louisiana provides for two types of property:  separate or community property

  • If a person dies without a will, then his or her SEPARATE PROPERTY gets distributed to the related family. Louisiana law groups family members into categories and gives certain categories priority. For example, any children (called your descendants) will have the right to inherit any of your separate property before your parents and siblings. 

  • If a person dies without a will, then his or her COMMUNITY PROPERTY is distributed based on whether you have children and whether you have a surviving spouse. Spouses own community property together, meaning each spouse owns 1/2 of the property. Find out if the property is community or separate property. The surviving spouse will keep their ownership of their half whereas the deceased's 1/2 will be distributed according to the law. 


Heirs inherit their part of the property based on the degree of the relationship to the decedent. Simply put, those more closely related, like your children, will outrank those more remotely related, like your parents and siblings. 

Louisiana law also determines how assets get distributed to the surviving spouse. When your children are forced heirs by age or by a disability, the law reserves a portion of your property that must go to these relatives.

 

Separate Property

Order of succession without a will for separate property

 When the deceased person had no Will and left separate property, this is the order of who will inherit that property:

Category 1. Descendants: This class is any relatives directly below you on your family tree (your children, grandchildren, great-grandchildren). Keep in mind that the closer related members will exclude those more remote. Hence, if your children are still alive, your grandchildren and great-grandchildren will not inherit because your children will outrank them. 

Category 2. If you have no living descendants, then the property will go to the decedent's parents and siblings. 

Here are the following possible situations for category #2: 

  • If you have 1 living parent that parent will inherit something called a usufruct over the property. If you have 1 living sibling, that sibling will inherit something called naked ownership of the property
  • If both parents are living (even if they are separated or divorced) they will inherit a joint usufruct over the property. If any 1 or more siblings are living, they will share naked ownership of the property. 
  • If there are no living parents, but you have 1 or more siblings, that sibling will inherit full ownership or the siblings will equally split the full ownership. 
  • If one or both parents are living but you leave no siblings, the parent(s) will inherit ownership fully. 
  • If the decedent leaves any half-siblings, the division of the property is complicated. The property is divided into the maternal and paternal sides and any full siblings are put on both sides. If this is your situation, contact a successions attorney for further help or send us an email and we may be able to help you. 
  • Step-siblings are not included for inheritance unless the deceased person adopted them, they are then treated as a normal full sibling.  

Category 3. If the deceased left no living descendants, or parents, or siblings, the property will be inherited by a "Spouse not judicially separated" - Physical separation plays no role here. The spouse of the deceased is only cut out if they are judicially separated which typically entails a divorce that was finalized. 

Category 4. If the deceased left no living descendants, or parents, or siblings, or spouse, the property will be inherited by "Other Ascendants" - These are relatives directly above you on your family tree, minus the decedent's parents. This category is referring to the decedent's grandparents or great-grandparents. 

Here are the following possible situations for category #4:

  • Your grandparents come before your great grandparents and therefore any living grandparent will outrank any living great-grandparents. 
  • This is complicated in a similar way to the half-siblings complication. Any grandparents on your maternal side will inherit or split the maternal 50% and any grandparents on your paternal side will inherit or split the paternal 50%
  • For example, if the decedent has a living maternal grandpa and both living paternal grandpa and grandma - then your maternal grandpa will inherit 50% of your property while the paternal grandparents will split the other 50% which will give them each 25% of your property 
  • If there is only one grandparent, regardless of a maternal or paternal side, they will inherit the entire property 
  • Step-grandparents are not included in the inheritance 
  • If you have no living grandparents, any living great-grandparents will inherit the same way (maternal side versus paternal side)

Category 5. If you leave no descendants, or parents, or siblings, or spouse, or ascendants, then the property will be inherited to "other collaterals" - this refers to someone on your family tree who is related by blood but is not directly below or above the decedent. This category includes any living aunts, uncles, and cousins. Aunts and Uncles will usually be more closely related and will outrank cousins. Your living collaterals will inherit equally. For example, if you have 2 living aunts and 2 living uncles, each will inherit 25% of the property.

Category 6. If you leave no relatives covered in the 5 categories above, meaning you died with NO family, the property will go to the State of Louisiana. 

Community Property

Order of succession without a will for community property

  1. To children, or children’s descendants
  2. To brothers and sisters or their descendants, with usufruct for parents, if parents are alive.
  3. To nieces and nephews, or other descendants,
  4. To surviving spouse
  5. To grandparents or other ascendants
  6. Nearest blood relative
  7. Then, finally, to the State of Louisiana
Last Review and Update: Dec 21, 2022
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