By William J. Voitier
Introduction
Imagine, in 2022 your parent died with an invalid notarial will because it lacked an attestation clause.[1] As a result, your inheritance rights to your parent’s estate vested immediately and by operation of law through intestacy, making you the rightful owner of the property.[2] Imagine further, however, that today, a full four years after your inheritance rights have vested, the legatee in that invalid 2022 will seeks to have it probated, arguing that an attestation clause is no longer needed for validity under current law.[3] Because the 2025 revisions to the form requirements for the validity of wills apply retroactively, the legatee is correct.[4] Thus, your vested inheritance rights will be divested, making you no longer the rightful owner of your parent’s estate. Finally, if you argue that this retroactive divestment of your vested property rights violates substantive due process, the court will almost certainly reject the claim.[5] After Bienvenu v. Defendant 1 and the 2025 revisions to the form requirements for wills, that is the current state of Louisiana law.[6]
In 2025, the Louisiana Legislature revised the form requirements for the validity of wills, simplifying compliance and prioritizing substance over form.[7] Crucially, though, the legislature was explicit in making those revisions retroactive, allowing for the retroactive divestment of vested inheritance rights.[8] The Louisiana Supreme Court opened the door to these types of retroactive divestments in Bienvenu v. Defendant 1.[9] Specifically, the Court held that vested property rights—which a vested inheritance right is—could be retroactively divested in accordance with the Due Process Clauses of the United States and Louisiana Constitutions.[10] In reaching this conclusion, the Court adopted rational basis scrutiny as the test to use when analyzing the divestment of these rights, ensuring its use for future divestments in other contexts.[11] Significantly, under rational basis scrutiny, a court will uphold a law as long as the government’s end is legitimate and the means of acheiveng that end are rational.[12] As a result, after Bienvenu v. Defendant 1, the Louisiana Legislature can almost certainly divest vested inheritance rights without judicial or constitutional barrier.[13]
Background
I. The Vesting of Inheritance Rights and the 2025 Revisions
The 2025 revisions prioritize substance over form by simplifying the execution of wills and minimizing nullities based on technical deficiencies.[14] For the purpose of this blog, the specifics of the 2025 changes are less important than the fact that those changes apply retroactively. Specifically, the retroactive provision of the 2025 revisions expressly states that its provisions “apply both prospectively and retroactively . . . to all claims existing and pending” on the effective date of the Act.[15] This retroactive provision, however, does not affect claims that have prescribed or received a final judgment.[16] Fundamentally, though, as illustrated in the hypothetical above, retroactive application of the 2025 revisions has the potential to divest vested inheritance rights.
Regarding vested rights specifically, a right vests once “the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest.”[17] A vested right is “absolute, complete, and unconditional, independent of a contingency, and a mere expectancy of future benefit.”[18] Inheritance rights vest immediately and by operation of law upon the death of the decedent, with universal successors acquiring ownership of the estate.[19] Indeed, prior to the appointment of a succession representative, a successor may exercise those rights of ownership, whether that be to his or her interest in a thing of the estate or the estate as a whole.[20] The simple point is this—a successor’s right to a decedent’s estate is a property right that vests at the exact moment the decedent dies and, if applied retroactively in certain circumstances, the 2025 revisions will divest those rights.
For decades, prior to the Bienvenu decision, any time the legislature retroactively divested vested rights, Louisiana courts found that doing so was a per se violation of due process.[21] After Bienvenu, however, that is no longer the case. Now, so long as the legislature’s reason for divesting a vested property right is legitimate and rational, it may do as it pleases.[22]
II. Substantive Due Process Analysis
Before delving into the Bienvenu decision and its implications on vested inheritance rights specifically, it will be helpful to briefly summarize due process protections and how substantive due process analysis usually works. The Due Process Clauses of the United States and Louisiana Constitutions protect individual rights to life, liberty, and property.[23] Thus, whenever the government arbitrarily or unreasonably infringes upon one of those rights, substantive due process is implicated.[24] When analyzing a substantive due process claim, courts use what is called the levels of scrutiny analysis.[25] The two levels of scrutiny a court will use for a substantive due process claim are rational basis scrutiny and strict scrutiny.[26]
Rational basis scrutiny asks if a law is rationally related to a legitimate governmental interest.[27] Strict scrutiny asks, however, whether a law is necessary to achieve a compelling government interest and if the means used to achieve that interest were narrowly tailored.[28] A court will apply rational basis scrutiny any time the right being infringed is not fundamental; alternatively, a court will apply strict scrutiny anytime the right being infringed is fundamental.[29] Rational basis review involves minimal judicial scrutiny and will “virtually always” result in the law being upheld.[30] Conversely, strict scrutiny involves significantly heightened judicial scrutiny and will almost always result in the law being struct down.[31]
III. Bienvenu v. Defendant 1 and its Impact on Vested Inheritance Rights
The Louisiana Supreme Court in Bienvenu v. Defendant 1 established that rational basis scrutiny is the level of scrutiny a court will use to analyze the divestment of vested property rights in Louisiana law, which, as explained above, includes vested inheritance rights.[32] In Bienvenu v. Defendant 1, specifically, the Louisiana Supreme Court had to decide whether an amendment to Louisiana Revised Statutes section 9:2800.0, which retroactively revived all childhood sexual abuse claims for a three-year period, violated the United States and Louisiana Constitution’s Due Process Clauses.[33] Said differently, because the right to assert the defense of accrued prescription is a vested property right, and property rights are protected by the United States and Louisiana Due Process Clauses, the Louisiana Supreme Court had to address, for the first time, whether the legislature even had the power to revive a prescribed cause of action in accordance with due process.[34] In holding that the legislature does have that power and that Louisiana Revised Statutes section 9:2800.0 is constitutional, the Court reasoned that because property rights implicate merely economic interests, they are non-fundamental and the law need only have a rational relationship to a legitimate governmental interest.[35] The result of this decision is that anytime the Louisiana Legislature divests these and other kinds of vested property rights, including vested inheritance rights, mere legislative rationality and minimal judicial scrutiny will be all that the United States and Louisiana Constitutions require, leaving these rights exposed to willful legislative divestment.[36]
IV. Why Vested Inheritance Rights Can Be Constitutionally Divested After Bienvenu
As articulated above, a simple, yet crucial fact about the 2025 revisions is that applying them retroactively will, in certain circumstances, divest individuals of a right that hadvested under the old law. Even more importantly, though, this retroactive divestment is almost certainly constitutional for two reasons. First, Bienvenu v. Defendant 1 established that rational basis scrutiny is the level of scrutiny a court will use when the legislature retroactively divests vested property rights, which includes vested inheritance rights.[37] Second, rational basis scrutiny “virtually always” results in the law being upheld—mere conceivable legislative rationality is all that is required.[38] When this test is applied to the 2025 revisions, they pass with ease. Plainly, avoiding nullities based on technicalities is a conceivably legitimate legislative end and simplifying the execution of wills is a rational way to achieve that end.[39] Thus, the revisions are constitutional. That being the case, vested inheritance rights, like all other vested property rights, can almost certainly be retroactively divested under current law.
Conclusion
For decades in Louisiana law, divesting vested rights was per se unconstitutional—a flat violation of substantive due process.[40] Because of the Louisiana Supreme Court’s approach to substantive due process analysis in Bienvenu v. Defendant 1, however, the Louisiana Legislature now has, effectively, free reign to divest vested property rights in multiple different contexts. Initially, the legislature used this power to revive a 50-year prescribed cause of action; and now, it has used this power to divest vested inheritance rights. If challenged, this most recent divestment will almost certainly be constitutional after Bienvenu v. Defendant 1.
[1] La. Civ. Code art. 1576 (1999).
[2] Id. art 934; id. art. 935.
[3] Id. art. 1576 (2025).
[4] S. 49, 2025 Leg., Reg. Sess. § 4 (La. 2025).
[5] See Bienvenu v. Defendant 1, 386 So. 3d 280 (La. 2024); see generally William Voitier, Vested Property Rights: Examining the Louisiana Supreme Court’s Approach to Substantive Due Process in Bienvenu v. Defendant 1, 86 La. L. Rev. 503 (2026).
[6] The above scenario is just one way that a will, which was invalid under the old law and written under the old law, could be valid today under the new law, resulting in the retroactive divestment of vested property rights. Other changes to the form requirements for olographic wills were made and those apply retroactively as well.
[7] See S. 49, 2025 Leg., Reg. Sess. § 4 (La. 2025).
[8] Id.
[9] Bienvenu, 386 So. 3d 280.
[10] Id. The type of vested property right at issue in this decision was the right to a prescribed cause of action. Because an inheritance right is also a type of vested property right, the Bienvenu decision implicates the clauses as well. Interestingly, this decision was reached on rehearing after the Court held on the first go-around that the retroactive divestment of a vested property right was an automatic due process violation. See Bienvenu v. Defendant 1, 382 So. 3d 38 (La. 2024).
[11] See Bienvenu, 386 So. 3d 280. Because the Court classified vested property rights as non-fundamental, it necessarily established that rational basis scrutiny is used for future divestments of these non-fundamental rights.
[12] See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 733 (1963) (Harlan, J., concurring) (upholding a law which bore a “rational relation to a constitutionally permissible objective”) (citing Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955)).
[13] This decision was a stark departure from the approach Louisiana courts historically took when vested rights were retroactively divested. See, e.g., Rousselle v. Plaquemines Par. Sch. Bd., 633 So. 2d 1235 (La. 1994).
[14] See, e.g., La. Civ. Code Ann. art. 1576 cmts. (a), (g) (2025).
[15] S. 49, 2025 Leg., Reg. Sess. § 4 (La. 2025).
[16] Id.
[17] Tennant v. Russel, 39 So. 2d 726, 728 (quoting 16 C.J.S. Const. L. § 215).
[18] Tennant, 39 So. 2d at 728.
[19] La. Civ. Code art. 934 (1999); id. art. 935.
[20] Id. art. 938 (2001).
[21] See, e.g., Rousselle v. Plaquemines Par. Sch. Bd., 633 So. 2d 1235, 1244 (La. 1994).
[22] This inquiry is all that rational basis scrutiny requires.
[23] La. Const. art. I, § 2 (“No person shall be deprived of life, liberty, or property, except by due process of law.”); U.S. Const. amend. V, cl. 3 (“[N]or be deprived of life, liberty, or property, without due process of law.”); id. amend. XIV (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”). Notably, the due process guarantees in the Louisiana and United States Constitutions are the same. Progressive Sec. Ins. Co. v. Foster, 711 So. 2d 675, 688 (La. 1988) (stating that these guarantees are the same, unlike the equal protection guarantees of each).
[24] See Babineaux v. Judiciary Comm’n, 341 So. 2d 396, 400 (La. 1976) (citing Poe v. Ullman, 367 U.S. 497 (1961)).
[25] Erwin Chemerinksy, Constitutional Law Principles and Policies 551−55 (4th ed. 2011).
[26] Id. at 687−92; Russel W. Galloway Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. Rev. 625 (1992); Timothy M. Tymkovich et al., A Workable Substantive Due Process, 95 Notre Dame L. Rev. 1961 (2020).
[27] U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980); Pennell v. City of San Jose 485 U.S. 1 (1988); Allied Stores v. Bowers, 358 U.S. 522 (1959).
[28] Chemerinksy, supra note 26, at 554; Bowers v. Hardwick, 478 U.S. 186, 189 (1986).
[29] Voitier, supra note 5, at 526−28 (internal citations omitted). Vested property rights are not fundamental.
[30] Erwin Chemerinsky, Substantive Due Process, 15 Touro L. Rev. 1501, 1534 (1999).
[31] See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972) (calling strict scrutiny “‘strict’ in theory and fatal in fact”).
[32] See Bienvenu v. Defendant 1, 386 So. 3d 280 (La. 2024).
[33] Id.
[34] Id.; see La. Const. art. I, § 2 (“No person shall be deprived of life, liberty, or property, except by due process of law.”) (emphasis added); U.S. Const. amend. V, cl. 3 (“[N]or be deprived of life, liberty, or property, without due process of law.”) (emphasis added); id. amend. XIV (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”) (emphasis added).
[35] Bienvenu, 386 So. 3d at 290.
[36] Voitier, supra note 5, at 555 (arguing that the Bienvenu decision “exposed all vested property rights in Louisiana to willful legislative divestment”).
[37] See Bienvenu, 386 So. 3d 280.
[38] Chemerinsky, supra note 31, at 1534.
[39] La. Civ. Code Ann. art. 1576 cmt. (a) (2025).
[40] See, e.g., Rousselle v. Plaquemines Par. Sch. Bd., 633 So. 2d 1235, 1244 (La. 1994).