by Jourdan E. Moschitta Curet, Senior Associate
The existence of forced heirship has been a stable presence in Louisiana since the inception of the Civil Code.[1] Uniquely civilian, forced heirship guarantees to designated worthy heirs a percentage of a decedent’s estate, referred to as the “forced portion.”[2] The remainder of the decedent’s estate is freely disposable; this “disposable portion” is equal to three-fourths of the decedent’s estate if he or she leaves one forced heir, or one-half of the decedent’s estate if he or she leaves two or more forced heirs.[3]
Under old law, all of the decedent’s children, including remote descendants, qualified as forced heirs.[4] In 1996, the Louisiana Legislature revised the definition of a forced heir to a descendant of the first degree 23 years of age or younger at the time of the decedent’s death, or a descendant of the first degree of any age who, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of death of the decedent.[5]
Important to any forced heirship discussion is the controversial doctrine of representation, which provides that a grandchild is permitted to represent a predeceased child in two instances: (1) if the predeceased child would have been 23 years of age or younger at the time of the decedent’s death; or (2) if the grandchild, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person, or administering his or her estate, regardless of the age of the descendant of the first degree at the time of the decedent’s death.[6]
To understand the controversial nature of this doctrine, one must first understand the basic application of legal representation in the law of successions. Representation is a fiction of the law, the effect of which is to put the representative in the place, degree, and rights of the person represented.[7] In other words, the representative stands “in the shoes” of the represented descendant. In the context of the law of successions, when a successor has predeceased the decedent, representation allows the descendants of the successor to “represent” the predeceased descendant and inherit in his or her place.[8] Equipped with the underlying theory of representation, it is easy to see the inconsistency in the application of the general representation rules to the doctrine of forced heirship.
As provided above, the first instance in which representation of forced heirs may occur is if the predeceased child would have been 23 years of age or younger at the time of the decedent’s death.[9] Note that here the age of the predeceased child is the relevant inquiry, not the age of the person succeeding by representation.[10] Because the age of the predeceased descendant is what qualifies the forced heir succeeding by representation, this conforms to the general rules of representation, which place the representative in the shoes of the represented.[11]
In considering the second instance in which representation of forced heirs may occur, which is if the grandchild, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person, or administering his or her estate, regardless of the age of the descendant of the first degree at the time of the decedent’s death, the result is somewhat haphazard.[12] Here, the relevant inquiry is whether the representative is disabled, not whether the predeceased parent is disabled, and applies regardless of anyone’s age.[13] In other words, incapable grandchildren or great-grandchildren are forced heirs whether or not their parents, children of the decedent, are forced heirs.[14] This is not representation; they are forced heirs in their own right.[15]
This divergence in the application of representation to forced heirship raises considerable issues with the credibility of the doctrine. The creation of this class of forced heirs regardless of age reflects the legislative policy that a descendant unable to support himself or herself is entitled to protection against unjust disinherison by a parent.[16] In 1996, the Louisiana State Law Institute recommended that descendants who are incapable of caring for their persons or administering their estates be eliminated as forced heirs.[17] This suggestion met strong resistance by the author of the 1995 constitutional amendment, proving that the structure was intended to include incapable grandchildren.[18] Ultimately, a compromise was reached in the conference committee during the special session to protect incapable grandchildren whose parent predeceased the decedent grandparent.[19] While designating grandchildren as forced heirs in their own right in limited circumstances may achieve the policy intended by the legislature, it is not representation,[20] and treating it as such harms the doctrine’s credibility.
If legislators wish to protect grandchildren who are mentally or physically incapable from disinherison, the way to do so is with a revision to Louisiana Civil Code article 1493(C), removing the doctrine of representation and making clear that grandchildren who meet the requirements are forced heirs in their own right.[21] The Louisiana Constitution appears to allow for such revision as it permits the legislature to classify “as forced heirs descendants of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates.”[22] As opposed to the previous constitutional provision providing for the classification of descendants, of the first degree, 23 years of age or younger as forced heirs,[23] the provision regarding mental or physical incapacity does not limit the degree of the descendant who may be a forced heir; thus, representation is not necessary to achieve the intended result of the legislature.[24] If the legislature, instead, continues forcing representation into a doctrine that does not allow for it, the legislature runs the risk of delegitimizing and watering down a useful legal construct and tool.
[1] Kathryn Venturatos Lorio, Forced Heirship: The Citadel Has Fallen—Or Has It?, 44 La. B.J. 16, 16 (1996).
[2] Kathryn Venturatos Lorio & Monica Hof Wallace, Successions and Donations, in 10 Louisiana Civil Law Treatise § 10.1 (2d ed. 2018).
[3] Id.
[4] Katherine Shaw Spaht et al., The New Forced Heirship Legislation: A Regrettable “Revolution”, 50 La. L. Rev. 409, 436 (1990).
[5] La. Civ. Code art. 1493(A) (2019).
[6] Id. art. 1493(B)–(C).
[7] Id. art. 881.
[8] Lorio & Wallace, supra note 2, § 10:1.
[9] La. Civ. Code art. 1493(B).
[10] Spaht et al., supra note 4, at 445.
[11] See La. Civ. Code art. 881.
[12] See id. art. 1493(C).
[13] See id.
[14] Katherine Shaw Spaht, Forced Heirship Changes: The Regrettable “Revolution” Completed, 57 La. L. Rev. 55, 71 (1996).
[15] Id. at 71–72.
[16] Id. at 72.
[17] H.R. 55, 1st Extra. Sess. (1996).
[18] Spaht, supra note 14, at 72.
[19] Id.
[20] Id. at 71–72.
[21] La. Civ. Code art. 1493(C) (2019) (“However, when a descendant of the first degree predeceases the decedent, representation takes place in favor of any child of the descendant of the first degree, if the child of the descendant of the first degree, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent’s death, regardless of the age of the descendant of the first degree at the time of the decedent’s death.”).
[22] La. Const. art. XII, § 5(B) (emphasis added).
[23] Id. (emphasis added).
[24] Id.