by Allena McCain, Senior Associate
Introduction
It is a deeply rooted tradition in Louisiana’s law of obligations that rights and effects of marriage are strictly personal.[1] A spouse is generally the only person with the capacity to enforce the rights and effects of marriage,[2] and an action to enforce a strictly personal right abates upon the death of either party.[3] In most circumstances, this restriction on the capacity to sue is merited and uncontested.
In a few instances, Louisiana courts allow narrow exceptions permitting the enforcement of a marital right by a successor; under such an exception, the action will survive the death of one spouse and may be continued by the decedent’s successor. One such instance is when a divorce is not finalized at the time of a spouse’s death, and the disposition of that spouse’s property hinges on whether he was married at the time of his death. A successor with an interest in the property subject to the divorce proceedings may continue the action until the judgment is finalized.[4]
A recent decision from the Louisiana First Circuit Court of Appeal potentially widened the narrow scope of this exception.[5] In re Succession of Buhler[6 may have a vast impact on the vitality and scope of Larocca v. Larocca,[7] allowing successors to continue the prosecution of divorce actions not yet finalized at the time of one spouse’s death in far more cases than the narrow language of Larocca—and even Buhler itself—suggests.
A Narrow Exception: Larocca v. Larocca
In 1990, the Louisiana Supreme Court recognized a child’s standing to continue the divorce action of her mother and stepfather when her mother died before the divorce judgment became final.[8] Isabelle Larocca died after a court granted a judgment of divorce and after an appeal had been filed, but before the appellate court finalized the judgment.[9] Lower courts dismissed the appeal, holding that the entire action abated on the death of Isabelle according to the strictly personal nature of the action for divorce.[10] The Louisiana Supreme Court reversed, finding that where property interests among successors were in question, the court could substitute the executrix of Isabelle’s estate as the plaintiff for purposes of obtaining a final judgment.[11]
In Larocca, the property interests at stake rested on an ancillary claim to rescind marital donations, as Mr. Carlo Larocca was alleged to be at fault for the divorce.[12] After Louisiana instituted no-fault divorce in 1991, the legislature repealed and amended the Civil Code articles allowing for rescission of marital donations from the spouse at fault.[13] Because the Louisiana Legislature subsequently amended the law governing marital donations, commentators doubted the lasting impact of the Larocca decision; the Court decided the case under law that, at the time of the decision, was no longer in effect.[14]
Reservations about the applicability of Larocca following the statutory revisions—making all marital donations irrevocable—were well-founded; courts cited Larocca only a handful of times in over two decades following its decision, and an appeals court overruled the sole case that directly followed its holding.[15] In early 2018, however, a new decision potentially changed the heritability of divorce actions.[16]
A Broader Application: In re Succession of Buhler
The Louisiana First Circuit recently decided In re Succession of Buhler, which revived, rejuvenated, and possibly reformed the heritability of divorce actions in Louisiana.[17] Mr. and Mrs. Buhler married for a second time in 2000.[18] During this marriage, on May 18, 2013, Mr. Buhler executed his last will and testament, leaving his entire estate to Mrs. Buhler.[19] In 2014, Mrs. Buhler filed for divorce, and the court rendered and signed the divorce judgment.[20] Mr. Buhler died before the delay for appeal had expired but after the Family Court of East Baton Rouge Parish rendered and signed the judgment.[21]
The court probated Mr. Buhler’s testament and named Mrs. Buhler executrix in accordance with the will.[22] Mr. Buhler’s daughter contested the will and the designation of Mrs. Buhler as the executrix; she claimed that the parties were divorced when Mr. Buhler died, and that Mrs. Buhler was no longer the proper executrix under Civil Code article 1068(5).[23] The district court revoked Mrs. Buhler’s designation as executrix and held that the divorce decree nullified all testamentary provisions in her favor.[24]
On appeal, Mrs. Buhler alleged that the divorce action had not yet become executory because the time for filing an appeal had not yet run.[25] Mrs. Buhler further argued that Larocca was inapplicable because the parties did not plead ancillary property rights within the divorce action.[26]
The court disagreed.[27] Because the dispositions in Mr. Buhler’s testament depended on the validity and enforceability of the divorce judgment, the court found substantial property interests at stake in the divorce judgment.[28] The divorce action did not abate at the death of Mr. Buhler, and Mr. Buhler’s daughter was allowed to continue the action to its finality.[29]
Lasting Implications of Buhler on Divorce Action Heritability and Succession Rights
In Larocca, the original parties filed the divorce appeal, and the appeal was pending before the court at the time of Mr. Larocca’s death.[30] Even if the result in Larocca continued to apply after the revision of the divorce articles in 1991, the cases in which this issue would arise would be limited. Using the reasoning of the Court in Buhler, however, the exceptions to the strictly personal nature of a divorce action appear to be much broader than scholars and practitioners have understood over the last few decades.
Importantly, most divorce actions have community property implications.[31] The death of either spouse before a court has the opportunity to determine these community property rights will almost always result in a substantial property interest that rides on the abatement or survival of the divorce action. Final adjudication of the pending divorce action will assist successors in determining the volume of the decedent’s estate and the value of the successor’s rights.
Moreover, a judgment of divorce retroactively terminates the community property regime between the parties.[32] Depending on the outcome of the divorce, a long-pending action prior to the judgment could severely impair or bolster a successor’s rights.
Although both Larocca and Buhler addressed actions with judgments prior to the death of a party—Larocca with an appeal pending and Buhler within the period for filing an appeal—courts could easily extend the reasoning of Buhler to apply to any divorce action that a decedent-spouse is pursuing at the time of his death. If future courts adopt the broad reasoning of Buhler without appropriately heeding its narrow application, Buhler’s progeny could continue to chip away at the longstanding tradition of strictly personal rights of marriage.
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[1] La. Civ. Code art. 1766 and cmt. c.
[2] Id.
[3] La Code Civ. Proc. art. 428.
[4] See, e.g., Larocca v. Larocca, 597 So. 2d 1000 (La. 1992); Canatella v. Canatella, 91 So. 3d 393 (La. Ct. App. 2012).
[5] See In re Succession of Buhler, 243 So. 3d 39 (La. Ct. App. 2018).
[6] Id.
[7] Larocca, 597 So. 2d 1000.
[8] Larocca, 597 So. 2d 1000.
[9] Id. at 1000.
[10] Id.
[11] In Larocca, the parties brought an ancillary claim for rescission of marital donations, which affected the property rights of the parties and, by succession, Isabelle’s heirs. Id. at 1004–05. When Louisiana instituted no-fault divorce in 1990, the legislature repealed and amended the Civil Code articles on rescission of marital donations.
[12] Id. at 1004–05. Prior to 1991, when a spouse was found at fault for the divorce, all donations made to that spouse were revocable upon divorce. Id. at 1004 (citing Fargerson v. Fargerson, 593 So. 2d 454 (La. Ct. App. 1992)).
[13] See Kenneth Rigby, Matrimonial Regimes: Recent Developments, 60 La. L. Rev. 405 (2000).
[14] Id.
[15] See McCann v. McCann, 77 So. 3d 997 (La. Ct. App. 2011), rev’d, McCann v. McCann, 93 So. 3d 544 (La. 2012).
[16] See In re Succession of Buhler, 243 So. 3d 39 (La. Ct. App. 2018).
[17] Id.
[18] Id. at 42.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id. La. Civ. Code art. 1608.
[24] Id. at 43.
[25] Id. at 46.
[26] Id. at 46–47.
[27] Id. at 48–49.
[28] Id.
[29] Id. at 49.
[30] See Larocca v. Larocca, 597 So. 2d 1000 (La. 1992).
[31] The default legal matrimonial regime is a community of acquets and gains. La. Civ. Code art. 2327.
[32] Id. art. 2375.