by Bill Milburn, Senior Associate
I. Introduction
John Doe has twins, Jane and John Jr. John is an oil tycoon who always fancied himself as a sort of renaissance man. In order to emboss his name in history, he draws up a testament leaving everything he owns to his state’s flagship university. Jane and John Jr. are deeply hurt and quickly challenge the testament under the laws of forced heirship. Jane and John Jr. are both 30 years old and afflicted with mental illnesses. Jane currently works as a file clerk for a local law firm, but she struggles to keep a job because of her bi-polar disorder, which she likely inherited from her father, that renders her bedridden once every 6–12 months. John Jr. is a war veteran who suffers from Post-Traumatic Stress Disorder (“PTSD”). Similar to Jane, he struggles to sustain employment due to bouts of permanent incapacitation relating to his PTSD. Jane and John Jr. have the same fundamental problem: their mental illnesses prevent them from effectively taking care of themselves and administering their estates.[1] A layperson applying common sense may very well believe that no matter what the law of forced heirship is, it likely treats both Jane and John Jr. the same—either they are both forced heirs, or neither is a forced heir. Sadly, this is not the case. In the eyes of the law, only Jane is a forced heir. Why? Not because she needs the assistance more than her brother, but merely because her mental illness is inherited.[2]
A. Constitutional Provision Providing for Forced Heirship
First and foremost, forced heirship is a constitutional right[3] enshrined in article XII, § 5. In pertinent part, it reads:
The legislature shall provide for the classification of descendants, of the first degree, twenty-three years of age or younger as forced heirs. The legislature may also 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. The amount of the forced portion reserved to heirs and the grounds for disinherison shall also be provided by law.[4]
B. Forced Heirship in the Civil Code
Elaborating on the Louisiana Constitution, Louisiana Civil Code article 1493(A) provides that forced heirs include descendants of the first degree who (1) are under 24 years old or (2) “because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of decedent.”[5] In order to protect those descendants who, at the time of the death of the decedent, have an incurable disease that will in the future, but has not yet rendered them “permanently disabled,” the legislature added subpart (E) to article 1493 in 2003:[6]
For the purposes of this Article “permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent” shall include descendants who, at the time of the death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.[7]
Subpart (E) grants a legitime[8] to a descendant who has, for instance, ALS or muscular dystrophy but has not yet been incapacitated, thereby expanding forced heirship rights.[9] Yet scholars and judges, even those who support forced heirship generally, have found subpart (E) substantively and structurally lacking.[10]
II. Addressing Questions of Constitutionality, Determinability, and Public Policy
The problems with article 1493(E) discussed here are threefold: first, is subpart (E) constitutional; second, assuming constitutionality, is the language of subpart (E) determinable and capable of consistent application; and third, is the policy underlying forced heirship aided by subpart (E).
A. The Constitutional Question
In 2014, the Louisiana State Law Institute recommended that article 1493(E) be repealed as unconstitutional.[11] Professor Max Nathan, the reporter for the law of successions, argued that the forward looking language of article 1493(E) did not comport with the constitutional requirement that the incapacity of the descendant be present at the time of the death of the decedent.[12] The unconstitutionality, however, is not so patently obvious, as none of the appellate courts that have applied 1493(E) raised the constitutional question, notwithstanding the fact that appellate courts may notice constitutional problems on their own.[13]
B. Determinability of Article 1493(E)
Though early critics of article 1493(E) claimed “incurable” and “inheritable” were indeterminate terms, courts have not had trouble applying them.[14] Judges and practitioners have found “may” to be a troublesomely indeterminate term.[15] For instance, alcoholism is an inheritable and incurable disease.[16] If a descendant’s father and grandfather battled alcoholism, then he could argue that alcoholism may render him incapable in the future.[17] Even admitting that common usage of “may” indicates something more than 1/100 or 1/1000 chance does not make it a workable standard.[18] How much more than 1/100 chance does “may” require? 1/50? 1/25? 1/10? In the case of the descendant with alcoholic ascendants, what if the descendent received a DUI five years ago, ten years ago, or twenty years ago? When does a person cross the threshold of “may”? It depends on who is answering the question.[19] The legislature should solve this problem by replacing the “may render” standard with either a clear and convincing standard[20] or a more probable than not standard.[21] While either would increase the determinability of article 1493(E) and the predictability of its application, thus furthering the public policy of “warding off intra-family litigation,”[22] the lesser threshold is preferable because it better protects additional public policy goals.[23]
C. Article 1493(E) and Public Policy
Forced heirship should further the state’s interest in “warding off intra-family litigation, promoting family solidarity,”[24] and protecting the public fisc.[25] Remembering that article 1493 was amended with subpart (E) to eliminate the arbitrariness of withholding forced heirship from a person who had a debilitating disease but was not yet permanently incapable at the time of death of the decedent,[26] the requirement that a descendant have an inherited disease should be purged. Family solidarity is served by giving to those who are permanently disabled regardless of whether their disability is inherited. Remember John Jr. from the hypothetical above: what about having PTSD makes him unworthy for forced heirship?[27] Moreover, without a legitime, someone like John Jr. will likely need to rely on the state, thus burdening the public fisc. Distinguishing forced heirs according to whether a disease is inherited fails to uphold the public policy of forced heirship and must be changed.
III. Conclusion
Permanently disabled descendants, under the public policy of this state as embodied in its Constitution[28] and its jurisprudence,[29] legitimately deserve a legitime. Adding subpart (E) to article 1493 was a good first step towards protecting those who are unable to take care of their persons and their estate, but its work is incomplete due to its arbitrary and indeterminate language. Four years ago, Senate Judiciary Committee A was presented with potential amendments to article 1493(E) but voted to defer action until its members could properly evaluate the situation.[30] It has been long enough, and a new amendment should be brought. Judges, lawyers, and most importantly, successors probating testaments deserve a clear standard: “may render” should be replaced with “will, more probably than not, render.” Additionally, the requirement that the incapacitating disease must be inherited should be abolished as its arbitrary and discriminatory nature is anathema to the public policy underlying forced heirship, namely, the promotion of family solidarity.
[1] This language comes from Louisiana Civil Code article 1493(E).
[2] See In re Succession of Ardoin, 957 So. 2d 937, 943 (La. Ct. App. 2007) (finding expert testimony demonstrated bi-polar disorder is likely an inherited disease); Telephone Interview with Dr. Milo Milburn, Professor, Franciscan University of Steubenville (Oct. 14, 2018) (stating that bi-polar disorder, at least to a certain extent, is an inherited disease).
[3] See, e.g., La. Const. art. XII, § 5 (1995); Succession of Lauga, 624 So. 2d 1156, 1163 (La. 1993).
[4] La. Const. art. XII, § 5(B).
[5] La. Civ. Code art. 1493(A) & (E) (2018).
[6] See Louisiana State Senate Broadcast Archives, La. St. Senate (May 13, 2004), http://senate.la.gov/video/videoarchive.asp?v=senate/2014/05/051314JUDA.
[7] La. Civ. Code art. 1493(E) (emphasis added).
[8] See id. art. 1494 (“A forced heir may not be deprived of the portion of the decedent’s estate reserved to him by law, called the legitime, unless the decedent has just cause to disinherit him.”).
[9] See La. St. Senate, supra note 6.
[10] See infra Part II; J.R. Trahan, Successions & Donations, 64 La. L. Rev. 315, 359–75 (2004) (defending in part and criticizing in part article 1493(E)); S.B. 182, Leg., Reg. Sess. (La. 2004) (recommending that article 1493(E) be amended); H.B. 573, Leg., Reg. Sess. (La. 2014) (recommending that article 1493(E) be amended); H.B. 1114, Leg., Reg. Sess. (La. 2014) (recommending that article 1493(E) be repealed); La. St. Senate supra note 6 (bringing H.B. 573 at the request of judges).
[11]H.B. 1114, Leg., Reg. Sess. (La. 2014).
[12] See La. St. Senate, supra note 6; La. Const. art. XII, § 5 (referring to descendants who are incapable of administering their estates, not descendants who are or may become incapable of administering their estates). Article 1493(E) could also be unconstitutional due to vagueness, see Joseph A. Prokop, Jr., Louisiana Successions (2018), but vagueness should be solved by clarifying article 1493(E), not by abolishing it. Changing “may render” to “will, more probably than not, render” will eliminate the vagueness without throwing the article-1493(E)-baby out with the bathwater. See infra Part II.B
[13] See La. St. Senate, supra note 6; see also, e.g., In re Succession of Ardoin, 957 So. 2d 937 (La. Ct. App. 2007); Stewart v. Estate of Stewart, 966 So. 2d 1241 (La. Ct. App. 2007); In re Succession of Forman, 37 So. 3d 1081 (La. Ct. App. 2010); In re Succession of Carroll, 125 So. 2d 505 (La. Ct. App. 2013).
[14] See Trahan, supra note 10, at 365–69. Critics of the legislation also thought the word “incurable” would cause problems. Id. The courts have correctly, and without any apparent struggle, distinguished curability from treatability. See, e.g., In re Succession of Forman, 37 So. 3d at 1084. For more on how treatability affects determining whether a descendent is permanently incapable of taking care of her estate, see Trahan, supra note 10, at 369–371; In re Succession of Ardoin, 957 So. 2d at 943; In re Succession of Forman, 37 So. 3d at 1083–84.
[15] See La. St. Senate, supra note 6.
[16] See Telephone Interview with Dr. Milo Milburn, supra note 2. Alcoholism, like bi-polar disorder, depression and other mental disorders, is not inherited in the sense that the son of an alcoholic will necessarily be an alcoholic, but it is more likely. See id.
[17] See La. St. Senate, supra note 6.
[18] See Trahan, supra note 10, at 371.
[19] Another example that highlights the indeterminacy issue is heart disease. Heart disease is incurable and inheritable, but, at least in some instances, very treatable with medicine. Still, if the individual with heart disease does not adjust their diet or take their medicine, he may become incapable of administering his estate. The same could be said of very high functioning bi-polar individuals. Some individuals with bi-polar may never be incapacitated to the level required by article 1493(E). See generally Telephone Interview with Dr. Milo Milburn, supra note 2. The court in Stewart v. Estate of Stewart, 966 So. 2d 1241 n.2 (La. Ct. App. 2007), stated that descendants who had bipolar disorder were not automatically forced heirs under article 1493(E), but this merely revives the determinability question: bi-polar plus what carries descendants over the “may render” threshold?
[20] See S.B. 182, Leg., Reg. Sess. (La. 2014) (allowing forced heirship for “descendants of the first degree who, at the time of death of decedent, have an incurable disease or condition which as shown by clear and convincing evidence will render them permanently incapable in the future of caring for their persons or administering their estates”) (emphasis added).
[21] See H.B. 573, Leg., Reg. Sess. (La. 2014) (allowing forced heirship when “according to medical documentation, an inherited, incurable disease or condition that will, more probably than not, render them incapable of caring for their persons o administering their estates in the future”) (emphasis added).
[22] See Interview with J.R. Trahan, Professor, Paul M. Hebert Law Center at Louisiana State University, in Baton Rouge, La. (Sept. 27, 2018); but see La. St. Senate, supra note 6 (Professor Katherine Spaht arguing that using the more probable than not standard would add nothing, because it is already the civil burden of proof and persuasion). As article 1493(E) currently stands, the burden of proof requires that it is more likely than not that the inherited, incurable disease may render the individual incapacitated. Under the more probable than not standard proposed in 2014, the burden of proof would require that it is more likely than not that the disease will render the individual incapacitated. Thus, the change is not a distinction without a difference.
[23]See infra Part II.C.
[24] Succession of Lauga, 624 So. 2d 1156, 1165 (La. 1993). It should be noted that Succession of Lauga was decided before forced heirship was abolished and redefined by constitutional amendment in 1995, reflecting the current law. Even with the amendment to the Constitution, the public policy underpinning forced heirship has not changed in kind, rather it has changed by degree. Thus, forced heirship should still ward of intra-family litigation and promote family solidarity even if it cannot do so to the same degree as it did before the amendment. See generally Trahan, supra note 10, at 359.
[25] See La. St. Senate, supra note 6; Trahan, supra note 10, at 359, 373.
[26] See La. St. Senate, supra note 6.
[27] See In re Succession of Carroll, 125 So. 2d 505 (La. Ct. App. 2013) (finding evidence that prostate cancer may render plaintiff incapable in the future was not relevant as there was insufficient evidence to show that the prostate cancer was an inherited disease).
[28] La. Const. art. XII, § 5.
[29] See Succession of Lauga, 624 So. 2d at 1165.
[30] See La. St. Senate, supra note 6.