By Sarah Szwak
Introduction
Imagine a situation where Adam marries Betty. Years later, Adam leaves Betty and forms a relationship with Claudia, who never knew about Betty and Adam’s marriage. Adam eventually marries Claudia, without ever legally divorcing Betty.[1] During his marriage to Claudia, Adam dies and is not survived by any children. This unusual situation raises questions over who inherits Adam’s community property. Would Betty inherit the community property as Adam’s legal spouse, or would Claudia inherit the community property as Adam’s putative spouse?[2] The answers to these community property allocation questions depend on whether Adam acted in good or bad faith in marrying Claudia.[3] If Adam knew his marriage to Betty was not dissolved prior to his marriage to Claudia, he acted in bad faith in marrying Claudia, meaning that Betty and Claudia would likely each inherit one-half of the community property.[4] However, if Adam thought his marriage to Betty was dissolved, he acted in good faith in marrying Claudia, meaning that Claudia would likely inherit all of the community property.[5]
There are several issues with this current rule. First, dependance on the good or bad faith of a bigamous spouse is illogical in the context of the inheritance of community property because one cannot punish a bigamous spouse for his or her bad faith after death.[6] Disallowing the bigamist’s descendants to inherit community property punishes the descendants, which is unreasonable because the successors are not responsible for the deceased’s bad faith.[7] Second, inquiring into the bigamist’s good or bad faith requires extensive time and resources from the courts and parties. The parties must present evidence showing the deceased’s subjective intent, which is often a lengthy and difficult task.[8] The court must then take the time to consider this evidence and conclude whether the bigamist was in good or bad faith. Third, the circumstance explained in the above hypothetical has only been discussed among courts and has never been addressed by the legislature. Without legislative guidance, many unanswered questions remain and there is—and will continue to be—confusion across Louisiana courts about how to apportion community property in this circumstance.[9]
Because of the issues surrounding the current jurisprudential approach, the legislature should adopt a new law that allows the bigamist’s descendants to inherit one-half of the community property regardless of the bigamist’s good or bad faith. Additionally, the other half of the community property should go to the putative spouse regardless of the bigamist’s good or bad faith. This rule would end arbitrarily punishing the successors of a bad faith bigamist and greatly simplify the approach for courts and parties. Further, this proposal would eliminate the unanswered question of whether a bad faith legal spouse inherits community property because the legal spouse would never inherit community property regardless of the bigamist’s good or bad faith.
I. Louisiana’s Putative Marriage Doctrine
A valid marriage in Louisiana requires a marriage ceremony, the free consent of the parties, and the absence of a legal impediment.[10] There are three legal impediments to a marriage’s validity: a close relationship by blood or adoption, age, and a prior undissolved marriage.[11] The impediment of a prior undissolved marriage applies when two spouses marry, are never legally divorced, and then one of the spouses marries a second person.[12] The existence of a prior undissolved marriage means that the second marriage is an absolute nullity.[13]
Even though the second marriage is an absolute nullity, it can produce civil effects through the putative marriage doctrine.[14] Under the putative marriage doctrine, an absolutely null marriage produces civil effects in favor of a party as long as that party remains in good faith.[15] In the context of a putative marriage, good faith is an honest and reasonable belief that the marriage is valid and that no legal impediment exists.[16] Thus, good faith spouses to the second marriage must have a subjective belief that the marriage is valid, and that belief must be objectively reasonable.[17] In other words, a good faith spouse must honestly and reasonably believe that there was no impediment to the marriage. If these qualifications are met, then the putative marriage produces civil effects in favor of that spouse for as long as he or she remains in good faith.[18] However, when the impediment causing the nullity is a pre-existing marriage, the civil effects continue for the non-bigamist spouse until the marriage is declared null or the parties contract a valid marriage, even if the non-bigamist spouse is no longer in good faith.[19]
II. Community Property Inheritance and Putative Spouses
Louisiana law provides for a community property regime and states that property acquired during a marriage belongs to both spouses in a present, undivided one-half interest.[20] A judgment of divorce retroactively terminates the community property regime to the date of filing of the petition for divorce.[21] However, when no judgment of divorce is rendered and the couple remains married until one spouse dies, the inheritance of the community property depends on whether any descendants survive the deceased.[22] If the deceased spouse leaves descendants, those descendants and the surviving spouse will each inherit one‑half of the community property.[23] If no descendants exist, the surviving spouse inherits all community property.[24]
As explained in the introductory hypothetical, it is possible to have both a legal spouse and putative spouse.[25] Thus, the question as to who inherits the community property in this circumstance is important. The courts have struggled with how to approach this question, but the answer currently depends on whether the bigamist acted in good or bad faith to procure the second marriage.[26]
III. Jurisprudence on Community Property Inheritance When a Bigamous Spouse Is in Bad Faith
Louisiana jurisprudence is unclear on how to divide community property upon the death of a bigamist in bad faith.[27] In Patton v. Cities of Philadelphia & New Orleans, the Louisiana Supreme Court held that the putative spouse and legal spouse each inherit one-half of the community property when the bigamist is in bad faith.[28] In Patton, Abraham Morehouse married Abigail Young and fathered two children in New York.[29] Later, Abraham moved to Louisiana and claimed to be a widower without ever divorcing Abigail.[30] Abraham then married Bléonore Hook and fathered more children.[31] Upon Abraham’s death, the Court held that both Abigail, the legal spouse, and Bléonore, the putative spouse, would each inherit one‑half of the community property.[32] The Court reasoned that Abigail should inherit because Abraham had abandoned her and Abigail should not lose her rights “on accounting of the fault and misconduct of her husband.”[33]
A hundred years later, the Louisiana Supreme Court held, in Succession of Chavis, that although the bigamist was in bad faith, the legal spouse would not inherit.[34] Rather, the community property was split in half between the putative spouse and the descendants.[35] In Chavis, Alvin Chavis filed for separation of bed and board from his wife, Gladys Chavis, but married Onelia Chavis before a judgment of divorce was granted.[36] The Court found that Alvin was in bad faith, but stated that his bad faith was “immaterial” to the Court’s opinion.[37] Thus, the Court held that Onelia, the putative spouse, and Alvin’s descendants would each inherit one-half of the community property.[38]
In Succession of Choyce, the Louisiana Second Circuit Court of Appeal relied on Patton and held that both the legal spouse and putative spouse were entitled to one-half of the community property when the bigamist acted in bad faith.[39] In Choyce, Frank Choyce married Pauline Choyce Conaway and fathered a child.[40] Years later, Frank moved to Louisiana, claimed he had never been married before, married another woman, Annie V. Craig Choyce, and fathered four more children.[41] Upon Frank’s death, the court found that he was in bad faith and followed the precedent in Patton.[42] The court held that both Annie, the putative wife, and Pauline, the legal wife, would inherit one-half of the community property and the descendants would not inherit any community property.[43] As shown in Patton, Chavis, and Choyce, the jurisprudence on the community property rights of the putative spouse, legal spouse, and descendants when the bigamist is in bad faith is unclear.[44] However, Louisiana courts most frequently apply the Patton rule, which states that the putative spouse and legal spouse each inherit one-half of the community property.[45]
IV. Jurisprudence on Community Property Inheritance When a Bigamous Spouse Is in Good Faith
In Prince v. Hopson, the Louisiana Supreme Court held that the putative spouse and legal spouse would each inherit one-fourth of the community property and the other half would go to the bigamist’s descendants when the bigamous spouse was in good faith.[46] In Prince, James Brough filed for divorce from his wife, Victoria H. Albert.[47] A preliminary default was entered but no final judgment of divorce was rendered.[48]James then married another woman, Clementine Prince.[49] No evidence existed showing that James knew he was still married to Victoria before his marriage to Clementine.[50] The Court found that both James and Clementine, the putative wife, were in good faith.[51] Thus, the Court held that the community property would be apportioned between Clementine, the putative wife, and Victoria, the legal wife, in fourths, and the descendants would inherit one-half of the community property.[52] The Court’s reasoning in allowing the descendants to inherit was that the deceased’s good faith resulted in him obtaining the civil effects of the putative marriage, which meant he owned one-half of the community property.[53]
In 2022, the Louisiana Supreme Court held, in Succession of Burns, that when both spouses to a putative marriage are in good faith, the putative spouse inherits one-half of the community property, the bigamist’s descendants inherit the other half of the community property, and the legal spouse does not inherit.[54] In Burns, the original divorce proceeding was filed in Arkansas.[55] An Arkansas district court rendered a judgment of divorce, but the wife’s name was misspelled as “Sybia” rather than Silver.[56] Also, Silver’s alleged signatures on two documents from the proceedings were signed “Sybia.”[57] The husband, Willie Clyde Burns, filed a second petition for divorce in Louisiana, but a final judgment of divorce was never rendered in that case.[58] Both spouses believed they were legally divorced from each other, and Willie remarried Annie Lee Bradley.[59] Upon Willie’s death, the Court found that both spouses to the putative marriage were in good faith.[60] The Court held that Annie, the putative spouse, and the descendants would each inherit one-half of the community property, and Silver, the legal spouse, would not inherit.[61] The Court reasoned that the husband’s good faith allowed him to obtain the civil effects of the putative marriage.[62] Thus, his descendants were entitled to his one-half share of the community property.[63]
V. Fixing the Flaws in Community Property Inheritance Involving Bigamous Marriages
A. Current Law
The inheritance of the legal spouse, putative spouse, and the bigamist’s descendants currently depend on whether the bigamist was in good or bad faith when entering the second marriage.[64] The justification for this rule is that a putative marriage produces civil effects in favor of a party in good faith as long as that party remains in good faith.[65] Thus, if the bigamist is in bad faith, he cannot obtain the civil effects of the putative marriage, which includes the ownership of one-half of the community property.[66]
Although this rule can be logically applied in other scenarios involving putative marriages, this rule should not be applied when determining community property inheritance rights upon the death of a bigamist for several reasons.[67] First, a bigamous spouse in bad faith does not receive the civil effects as punishment for being in bad faith.[68] Once the bigamous spouse in bad faith is deceased, the punishment is instead directed to the descendants.[69] This result is absurd. The descendants should not be punished for their ascendant’s bad faith because they have no control over their ascendant’s actions.[70] Thus, the bigamist’s descendants should inherit one-half of the community property regardless of their successor’s bad faith. Second, an inquiry into the bigamist’s good or bad faith requires the parties to produce evidence surrounding the bigamist’s subjective intent.[71] In a divorce action where this issue is raised, the burden is insignificant because the bigamist may testify as to subjective intent. However, when succession cases raise issues over the decedent’s intent, the bigamist is deceased, leaving the parties with the task of proving the decedent’s subjective intent.[72]
The current jurisprudential rules are problematic for several reasons. First, these types of cases require exorbitant time and resources from the parties and the courts. Thus, legislation would provide clarity for how to properly manage these disputes. Second, the lack of legislative guidance on this issue has caused—and continues to cause—inconsistencies among Louisiana courts.[73] Without legislative support, courts must jurisprudentially develop the law in this area, which is problematic given the highly complex and fact-intensive nature of this litigation.[74] For example, the Patton Court held that when there is a good faith legal spouse and a bad faith bigamist, the legal spouse will inherit one-half of the community property.[75] However, the community property apportionment when both the bigamist and legal spouse are in bad faith is unknown.
B. Proposal
Because of the issues surrounding the current jurisprudential approach, the legislature should adopt a rule that states, “In the circumstance of a deceased being survived by a legal spouse and putative spouse, the putative spouse shall inherit the whole of the community property. If the deceased leaves descendants, then the descendants and the putative spouse shall inherit one-half of the community property each.” This proposed rule allows the descendants to inherit one-half of the community property regardless of the bigamist’s good or bad faith. Under this rule, the legal spouse would not inherit even if the deceased was in bad faith. Allowing the legal spouse to inherit a portion of the community property from the putative marriage gives the legal spouse a windfall. The legal spouse typically never contributes to the putative community property regime, so the legal spouse should not gain any portion of that property upon the death of the bigamist.[76]
Adoption of this rule would terminate the arbitrary punishment of the bigamist’s descendants.[77] Additionally, this rule would simplify the approach for courts and parties, saving time and resources. Lastly, the legislature’s adoption of this rule would give the courts clarity and resolve the inconsistencies in the jurisprudence.[78]
Conclusion
Determining the community property apportionment after the death of a bigamist is important to both the legal and putative spouse, as well as the bigamist’s descendants. Several issues surrounding the current jurisprudential approach call for legislative action.[79] The legislature should adopt a rule that allows the bigamist’s descendants and the putative spouse to each inherit one-half of the community property regardless of the bigamist’s good or bad faith. Adoption of this rule would provide a clear and simple approach. Additionally, it would solve the problems of unfairly punishing the bigamist’s descendants and allowing the legal spouse to inherit from the putative community property regime that they likely never contributed to.[80] Thus, the legislature should step in to provide clarity for litigants who will face this complex dilemma in the future.
[1] One cannot be married to two people at once. La. Civ. Code art. 88 (2025). However, the marriage between Adam and Claudia may produce civil effects in favor of one or both spouses under the putative marriage doctrine depending on whether one or both of the parties to the marriage was in good faith when entering the marriage. See id. art. 96.
[2] A putative marriage is a marriage that is null but produces civil effects because at least one of the parties entered the marriage in good faith. Id. art. 96. In this situation, one can assume that Claudia was unaware of Adam’s prior marriage to Betty. Thus, Claudia would be in good faith and obtain the civil effects of the putative marriage. See id. One civil effect which Betty is entitled to under the Louisiana Civil Code is inheritance of at least a portion of community property. Id. art. 2336.
[3] The community property allocation is dependent on Adam’s good or bad faith because only good faith spouses obtain the civil effects of a putative marriage. Id. art. 96. Thus, for any portion of the community property to belong to Adam, he must be in good faith. Id. arts. 88, 96.
[4] The above hypothetical is loosely based on Patton v. Cities of Philadelphia & New Orleans. 1 La. Ann. 98 (1846). In Patton, the community property was divided between the putative and legal spouse when the deceased was a bad faith bigamist. Id. at 106. It is noteworthy that under this rule, if Adam had descendants, those descendants would not inherit any portion of the community property. Typically, descendants inherit one-half of the community property. La. Civ. Code arts. 888–89.
[5] Succession of Burns, 354 So. 3d 1197, 1201 (La. 2022). In Succession of Burns, the inheritance was divided between the descendants and the putative spouse when the bigamist was in good faith. Id. at 1203–04. The outcome of the hypothetical would be different if Adam had descendants. In this case, the community property would be split in half between Claudia and the descendants. La. Civ. Code art. 889.
[6] Monica Hof Wallace, The Pitfalls of a Putative Marriage and the Call for a Putative Divorce, 64 La. L. Rev. 71, 114–16 (2003).
[7] Id.
[8] Good faith is typically presumed. Eddy v. Eddy, 271 So. 2d 333, 335 (La. Ct. App. 1972). However, good faith is not presumed for the bigamist because they caused the nullity of the marriage. Gathright v. Smith, 368 So. 2d 679, 683 (La. 1978). Thus, in this circumstance, the parties must present evidence showing the good or bad faith of the bigamist.
[9] Compare Patton, 1 La. Ann. at 106 (holding that the putative and legal spouse each inherit one-half of the decedent’s community property when the deceased was in bad faith), and Succession of Chavis, 29 So. 2d 860, 864 (La. 1947) (holding that the putative spouse and children would each inherit one-half of the decedent’s community property when the deceased was in bad faith), with Prince v. Hopson, 89 So. 2d 128, 133 (La. 1956) (holding that the children would inherit one-half of the community property and the putative and legal spouse would inherit one-fourth each when the deceased was in good faith), and Burns, 354 So.3d at 1201 (holding that the putative spouse and children would each inherit one-half of the decedent’s community property when the deceased was in good faith). Wallace, supra note 6, at 95. Although courts have addressed cases concerning both good and bad faith bigamists, a case involving this issue where the legal spouse is in bad faith has never been addressed. Thus, it is questionable whether the rule under Patton would apply, and the bad faith legal spouse would inherit one-half of the community property, or a completely different rule would apply. See 1 La. Ann. at 106.
[10] La. Civ. Code art. 87 (2025). Although this blog post focuses on the requirement of the absence of a legal impediment, a marriage ceremony and free consent of the parties is also required for a valid marriage. Id. At the marriage ceremony, both parties must be present, and the ceremony must be conducted by a third-party officiant who is qualified or the parties reasonably believe is qualified. Monica Hof Wallace, A Primer on Marriage in Louisiana, 64 Loy. L. Rev. 557, 579 (2018). The absence of a marriage ceremony makes the marriage absolutely null. La. Civ. Code art. 94. The free consent of the parties requires that neither party be subjected to duress and both are capable of discernment. Id. art. 93. Duress is when consent of a spouse is vitiated through a threat of injury against the spouse or an ascendant or descendent of the spouse. Id. art. 1960. However, duress does not include a threat of doing a lawful act or exercising a valid right. Id. art. 1962. The presence of duress in contracting a marriage creates a relative nullity. Id. art. 95.
[11] Id. arts. 88, 90, 90.1. Though not the focus of this blog post, the legal impediment of relationship by blood or adoptions means that ascendants, descendants, and collaterals within the fourth degree cannot marry each other. Id. art. 90. This applies whether the relationship is by blood or adoption, with the exception that collaterals within the fourth degree by adoption may marry with judicial authorization. Id. The legal impediment of age means that a person under 16 may not marry, and minors between 16 and 17 years old may not marry a major that is three or more years older than them. Id. art. 90.1. Same‑sex marriage is still written into the Code as a legal impediment to marriage, but the United States Supreme Court in Obergefell v. Hodges held that same‑sex marriage is constitutionally protected. Id. art. 89; Obergefell, 576 U.S. 644, 675–76 (2015).
[12] La. Civ. Code art. 88.
[13] Id. art. 94. An absolutely null marriage cannot be confirmed, and the nullity may be brought by anyone. Id. This is contrasted from a relatively null marriage, which can be cured through confirmation of the marriage. Id. art. 95.
[14] Id. art. 96.
[15] Id. A putative marriage produces the same civil effects as a legally valid marriage, such as alimony, the marital portion, and inheritance of community property. Cortes v. Fleming, 307 So. 2d 611, 615–16 (La. 1973); Wallace, supra note 6, at 72.
[16] La. Civ. Code Ann. art. 96 cmt. d.
[17] Wallace, supra note 10, at 588–89.
[18] La. Civ. Code art. 96.
[19] Id.
[20] There are several exceptions to this rule, as Louisiana’s community property regime is a complex legal regime. However, the general rule is that property acquired during the marriage is community property. Id. arts. 2336, 2338.
[21] Id. art. 159.
[22] Id. arts. 888, 889.
[23] Id. art. 889.
[24] Id.
[25] See discussion infra Part I.
[26] Compare Patton v. Cities of Philadelphia & New Orleans, 1 La. Ann. 98, 106 (1846), with Succession of Burns, 354 So. 3d 1197, 1201 (La., 2022).
[27] Patton, 1 La. Ann. at 106; Succession of Chavis, 29 So. 2d 860, 864 (La. 1947); Succession of Choyce, 183 So. 2d 457, 459 (La. Ct. App. 1966).
[28] Patton, 1 La. Ann. at 106.
[29] Id. at 101.
[30] Id.
[31] Id.
[32] Id. at 106.
[33] Id.
[34] Succession of Chavis, 29 So. 2d 860, 864 (La. 1947).
[35] Id.
[36] Id. at 862. A separation of bed and board is a legal separation of the married couple without an actual divorce. Couples can no longer file for legal separation in Louisiana as, in 1990, the legislature repealed the Civil Code articles authorizing this. Susan Kalinka, Acts 1990, No. 1009: The Repeal of Provisions for Separation from Bed and Board Increases the Federal Income Tax Burden of Separated Spouses in Louisiana, 53 La. L. Rev. 597, 597–98 (1993). Now, legal separation is only applicable to covenant marriages. La. Rev. Stat. § 9:309 (2024).
[37] Chavis, 29 So. 2d at 864.
[38] Id.
[39] Succession of Choyce, 183 So. 2d 457, 459 (La. Ct. App. 1966).
[40] Id. at 458.
[41] Id.
[42] Id.
[43] Id. at 459.
[44] Patton v. Cities of Philadelphia & New Orleans, 1 La. Ann. 98, 106 (1846); Succession of Chavis, 29 So. 2d 860, 864 (La. 1947); Choyce, 183 So. 2d at 459.
[45] Patton, 1 La. Ann. at 106.
[46] Prince v. Hopson, 89 So. 2d 128, 133 (La. 1956).
[47] Id. at 129.
[48] Id. at 129–30. The concept of preliminary defaults was repealed by the legislature in 2022. Victoria Cvitanovic, Updates to the Louisiana Default Judgment Rules, Wilson Elser (Aug. 29, 2023), https://www.wilsonelser.com/publications/updates-to-the-louisiana-default-judgment-rules [https://perma.cc/AKW8-X2KV]. However, before the law was repealed, plaintiffs were required to obtain a preliminary default prior to a default judgment. Preliminary defaults were essentially a warning period for the defendant and did not have the same legal effect as a default judgment. See generally Glessner v. Hyatt, 380 So. 2d 222 (La. Ct. App. 1980).
[49] Prince, 89 So. 2d at 130.
[50] Id.
[51] Id. at 132.
[52] Id. at 133.
[53] Id. at 132.
[54] Succession of Burns, 354 So. 3d 1197, 1201 (La. 2022).
[55] Id. at 1199.
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Id.
[61] Id. at 1201.
[62] Id.
[63] Id.
[64] Patton v. Cities of Philadelphia & New Orleans, 1 La. Ann. 98, 106 (1846); Burns, 354 So. 3d at 1201.
[65] La. Civ. Code art. 96 (2025).
[66] Id. art. 2336.
[67] The rule of disallowing a bad faith bigamist to receive the civil effects of a putative marriage is logical in situations where the bigamist is alive because the bigamist does not receive civil effects as a punishment for his bad faith.
[68] Patton, 1 La. Ann. at 106; Wallace, supra note 6, at 114.
[69] Wallace, supra note 6, at 114–17.
[70] Id. The recognition that descendants should not be punished for their ascendant’s actions is recognized in other areas of succession law, such as unworthiness. An heir can be declared unworthy for being criminally convicted of a crime involving the killing or attempted killing of the decedent or is judicially determined in a civil proceeding to have participated in the intentional, unjustified killing or attempted killing of the decedent. La. Civ. Code art. 941. However, even when that heir is declared unworthy, we allow their descendants to inherit by representation. Id. art. 942. This rule is logical because the descendants should not be punished for their ascendant’s conduct.
[71] See discussion infra Part II (good faith involves a subjective element); Wallace, supra note 10, at 588–89.
[72] Good faith is presumed except for the party that caused the nullity of the marriage. Eddy v. Eddy, 271 So. 2d 333, 335 (La. Ct. App. 1972); Gathright v. Smith, 368 So. 2d 679, 683 (La. 1978). Therefore, the descendants would have to prove their ascendant’s good faith to inherit.
[73] Compare Patton, 1 La. Ann. at 106, with Succession of Chavis, 29 So. 2d 860, 864 (La. 1947). In both cases, the Court was presented with a bad faith bigamous spouse. However, the apportionment of the community property at issue was different.
[74] Courts are limited to deciding specific cases, whereas the legislature can announce broad rules. See La. Const. arts. II, III, V. Without legislative action, the only questions that the courts have been able to answer are the questions that specific cases require an answer to. Id. arts. II, V.
[75] Patton, 1 La. Ann. at 106.
[76] Wallace, supra note 6, at 90–91, 110–11.
[77] Id. at 114–17.
[78] Compare Patton, 1 La. Ann. at 106, with Chavis, 29 So. 2d at 864. Both courts faced the same issue but came different to conclusions.
[79] See discussion infra Part VI.
[80] Wallace, supra note 6, at 90–91, 110–11, 114–17.
