By Joseph Mengis*

Introduction

Purchasing a home is a dream for most Louisiana residents, but the housing market has made it difficult for people to make that dream a reality.[1] Across the United States in 2025, the average age of a first-time home buyer reached a record high of 40 years old, with first-time buyers accounting for only 21% of all home purchases.[2] While difficulty in the Louisiana housing market is certainly a current issue, one potential factor affecting local market conditions traces back to one of the state’s oldest legal institutions, the public records doctrine.[3]

The Louisiana public records doctrine provides that a sale of immovable property is not effective against third persons until the parties file the act of sale in the conveyance records of the parish or parishes where the immovable is located.[4] The omission of the price from the recorded act of sale, however, does not limit the effectiveness of the sale against third parties, and parties to a sale have the right to protect their privacy by keeping the price out of the public records.[5] There are positive and negative aspects of either including or omitting the price, but removal of the price from the recorded act of sale leads to identifiable consequences for the parties and the housing market.[6] Including a nominal price in the sale exposes the parties to avoidable risks, such as the presumption that the sale was actually a donation, issues with potential lesion claims, and reduction in damages for a buyer claiming a breach of the warranty against eviction.[7] Also, widespread omission of price from recorded acts of sale reduces the accuracy of home appraisals and limits necessary data for home purchase negotiations, both of which may result in a weaker housing market.[8] The decision of whether to include the price in a recorded act of sale balances privacy with risk-tolerance, and the implications of this decision may have systemic effects for Louisiana residents.[9]

I. Background: Louisiana Law of Sales and the Public Records Doctrine

Under Louisiana law, a sale is a contract whereby a person transfers ownership of a thing to another for a price in money.[10] The three requirements for the perfection of the sale are the thing, the price, and the consent of the parties.[11] The parties to the sale must fix the price in a sum either certain or determinable through an agreed-upon method, and a sale does not occur unless there is clear intent for one party to pay a price.[12] Further, the price must not be out of all proportion with the value of the thing sold.[13] These basic requirements apply to the sales of both movables and immovables, but the sale of an immovable incorporates further prerequisites for its validity.[14]

Under the Louisiana public records doctrine, a sale of immovable property is effective against the buyer and seller upon its execution, but the sale is not effective against third persons until the parties file the act of sale for registry in the parish where the immovable is located.[15] Therefore, the rights and obligations established in an instrument that transfers an immovable are without effect as to third persons until the instrument is recorded in the appropriate conveyance records.[16] Recordation of an instrument, however, does not create a presumption that the instrument is valid or genuine; it simply ensures that the rights and obligations established by that instrument are effective against third parties.[17] Regarding the form of the act of sale, a sale of an immovable generally must occur by authentic act or by act under private signature.[18] The act of sale must also include a legal description of the property conveyed, which must provide some kind of substantial description of the immovable property.[19]

The primary purpose of the public records doctrine is to uphold public policy by “assuring the stability of land titles” through the recordation requirement to achieve effectiveness against third parties.[20] In furtherance of this purpose, Louisiana law also provides that a third person is not bound or barred by unrecorded claims against property that he has purchased, even if that person had actual knowledge that the public records were inaccurate.[21] Instead, the first party to properly record his interest in an immovable obtains superior title to that immovable over anyone who records a conflicting interest at a later date, thereby winning the “race to the courthouse.”[22] There are also several events pertaining to a recorded instrument that are effective against third persons without recordation, such as capacity or authority, occurrence of conditions, exercise of an option or right of first refusal, tacit acceptance, inheritance rights, and community property rights.[23] Therefore, the public records doctrine protects third party purchasers of immovable property by requiring the recordation of acts of sale to ensure public, accurate information regarding the title of every immovable.[24]

II. The Omission of Sales Price from Recorded Acts of Sale

Despite the importance of the price to the validity of a sale of an immovable, the parties do not need to recite the price in the act of sale.[25] Instead, the parties may rely on the parol evidence rule, which allows them to use evidence from outside the act of sale to establish the contemplated price.[26] Further, for effectiveness against third parties, the public records doctrine provides that even the recorded act does not need to include the price to be valid.[27] Therefore, in the interest of privacy, the parties may withhold the sales price from the recorded act of sale, instead opting to either rely on parol evidence or execute an Acknowledgment of Sales Price, a notarized document reflecting the actual price between the parties.[28] In either event, the outcome is that a third party to the sale cannot ascertain the price of the immovable by examining the public records, which calls into question whether this policy of omitting the sales price is in accordance with the intended transparency of the public records doctrine.[29]

To answer this question, prominent legal commentary indicates that the primary function of the public records doctrine is assuring the ownership of each immovable, as opposed to providing comprehensive information regarding each act of sale.[30]The primary assurance to a potential purchaser of property is that the purported seller truly owns the immovable that he intends to convey, and the recorded acts of sale illustrate the ownership of that immovable through its prior transactions.[31] In fact, a third party has an affirmative duty of inquiry into the status of the title based on the information provided, further indicating that the recorded act of sale is still effective, even if some details are missing.[32] The language of Louisiana Civil Code articles 517 and 1839 supports this interpretation by expressly requiring that the instruments be “filed for registry” without mentioning any required contents of the act of sale, such as the price.[33]  Legal commentary and the Civil Code both indicate that recitation of price is not necessary for an act of sale to satisfy the public records doctrine, and the jurisprudence further supports this proposition.[34]

In Dugas v. Talley, the Louisiana First Circuit Court of Appeal considered whether the recited consideration—$100 in one recorded act of sale and “$1 and other valuable consideration” in another—was so out of proportion to the value of the immovable property that the third-party purchaser should have taken notice that the price was insufficient to support the sale.[35] The First Circuit provided, “Our jurisprudence has always been that a purchaser need not go beyond the deed to inquire into the adequacy of the purchase price of the property he intends to acquire . . . [f]or the sake of stability in the title to immovables.”[36] Further, the recorded price “represents the stated consideration for the sale” and “a vendee who has paid an adequate price cannot be dispossessed of his property because a prior vendor has chosen to part with his title for an inadequate consideration.”[37] The First Circuit ultimately affirmed the granting of the purchaser’s exception of no right or cause of action, finding that the third-party purchaser had no affirmative duty to inquire into the sufficiency of the consideration in the recorded act of sale before purchasing the contemplated immovable property.[38] Dugas, in accordance with legal commentary and the Civil Code, demonstrates that the omission of price from an act of sale does not bar the recorded instrument from having effect against third parties and that any issues regarding the sufficiency of the consideration do not undermine the effectiveness of the recordation.[39]

III. Incentives to Include the Sales Price in a Recorded Act of Sale

Because Louisiana law clearly permits the omission of the price from the recorded sale of an immovable, the next issue is simply whether parties should include or omit the sale price.[40] Unsurprisingly, there are risks and benefits associated with either option, but this blog will focus on some incentives for the parties to include the price.[41] When parties opt to recite the price in the recorded act of sale, they are often protecting themselves from risks and benefitting the housing market as a whole.[42]

A. Omission of Price: Potential Consequences for the Parties

Omitting the price from a recorded act of sale exposes both the buyer and the seller to several risks related to the validity of the sale.[43] Firstly, a recorded sale with a nominal price could create the presumption that the conveyance was actually a donation in disguise, as opposed to a valid sale.[44] Omission of the sales price also creates issues regarding lesion.[45] For the buyer, a nominal sales price gives rise to a claim by the seller for lesion, and for the seller, omitting the sales price makes it more difficult to establish the provided consideration if the seller does have a potential claim for lesion.[46] Lastly, excluding the sales price could have devastating consequences for a purchaser who has a valid claim against the seller for a breach of the warranty against eviction.[47] In Versai Management, Inc. v. Monticello Forest Products Corp., two separate purchasers brought successful claims for breach of warranty against eviction, but the purchase prices in the relevant acts of sale were “for a consideration of $10” and “for a consideration of $10 and other good and valuable consideration.”[48] Therefore, the Louisiana First Circuit Court of Appeal awarded each of the plaintiff-purchasers damages in the amount of $10, finding that there was no evidence in the record to show that they were entitled to any further consideration.[49] The parties to a sale should be aware of the risks associated with reciting a nominal sales price in the recorded instrument, but there are also systemic risks associated with prevalent use of this practice.[50]

B. Omission of Price: Implications for the Louisiana Housing Market

To understand the impact of a widespread practice of omitting the price from recorded acts of sale, one must first understand the importance of appraisals to the process of buying and selling a house.[51] In any purchase of a home, the mortgage lender will require an appraisal of the home and property, which operates as an objective evaluation to validate the contract price of the house and to ensure the lender is providing an appropriate amount of money.[52] The three primary components of a home appraisal are the physical inspection of the home, detailed analysis of comparable sales, and summarization of the data in the appraisal report.[53] In the comparable sales analysis, appraisers estimate the value of the subject property by researching the prices at which similar properties have sold, basing similarity on several factors such as proximity, square footage, style, age, condition, and recency of the comparable sale.[54] To determine the price of these comparable sales, appraisers must access the public conveyance records to review the acts of sale, which generally recite the price of the home.[55]

If the parties to a recorded act of sale decide to omit the price, then appraisers are unable to access the information necessary to complete their comparable sales analysis, since they cannot determine the price at which the comparable properties actually sold.[56] As nominal sales prices in recorded acts of sale become more common, appraisers have progressively less data to complete their comparable sales analysis, which is the most critical component of the appraisal process.[57] When appraisers are unable to find reliable comparable sales, the margin for error in their appraisals greatly increases as their process becomes more dependent on subjective judgment instead of numerical data.[58] In the aggregate, inaccurate home appraisals can weaken the housing market by contributing to inflated home prices, deteriorated loan quality, and increased likelihood of mortgage fraud.[59] Further, accurate comparable sales data is important to ensure fair pricing for buyers and sellers in real estate transactions by providing accurate valuations, protecting lenders and investors, and reflecting trends in the market.[60] Therefore, widespread omission of the price from recorded acts of sale may result in reducing the accuracy of appraisals, limiting the available data for price negotiations, and restricting buyer’s access to credit, all of which have harmful effects on the Louisiana housing market.[61]

Conclusion

The right of the parties to omit the price from a recorded act of sale is inherent to the public records doctrine, but the decision of whether to exercise that right requires careful consideration.[62] Parties who opt to remove the price from the recorded instrument receive greater privacy, but they also face heightened exposure to transactional risks associated with the sale.[63]Further, the aggregate effect on the housing market of widespread exclusions of price from recorded acts of sale is likely detrimental because comparable sales analysis will become less effective, resulting in less reliable appraisals and reduced information for purchase negotiations.[64] Although this blog focuses primarily on the consequences of excluding the sales price, the policy of the public records doctrine supports the right of the parties to act in their discretion, and parties should make the decision that is best for their situation.[65]

* I would like to thank Professor Lonegrass, Professor Lovett, and Cameron Miller for their guidance and insights on this topic, which were greatly beneficial to the publication of this blog.

[1] See generally Annual Report for Louisiana Realtors Service Area 2 (La. Realtors, Baton Rouge, La.) (Jan. 2026).

[2] Id.

[3] Dian Tooley-Knoblett & David Gruning, Louisiana Sales Law § 8:3, 24 Louisiana Civil Law Treatise (Nov. 2025). When the United States acquired Louisiana, it adopted the Spanish “comprehensive system of recordation of mortgages and conveyances” that the colonial authorities had established in 1770, which served as the foundation of the current public records doctrine.

[4] La. Civ. Code art. 3338 (2006).

[5] See Melissa T. Lonegrass, Sandi Varnado & Christopher K. Odinet, Sale, Lease, and Advanced Obligations 271 (Carolina Academic Press 2019).

[6] See generally id.; How Comparables Influence Property Values in Real Estate, Houston Ass’n of Realtors, https://www.har.com/ri/2308/how-comparables-influence-property-values-in-real-estate [https://perma.cc/4BLN-2TVK] (last visited Mar. 31, 2026); Yanling G. Mayer & Frank E. Nothaft, Appraisal Overvaluation: Evidence of Price Adjustment Bias in Sales Comparisons, 50 Real Est. Econ. 862 (2022); but see Dean Gatzlaff & Peng Liu, List Price Information in the Negotiation of Commercial Real Estate Transactions: Is Silence Golden?, J. Real Est. Finan. Econ. 760, 761 (2013).

[7] See La. Civ. Code art. 2589 (1995); Lonegrass, supra note 5, at 271; see Versai Mgmt., Inc. v. Monticello Forest Prods. Corp., 479 So. 2d 477, 486 n.4 (La. Ct. App. 1985).

[8] See generally  How Comparables Influence Property Values in Real Estate, supra note 6; Mayer, supra note 6.

[9] See generally Lonegrass, supra note 5, at 271; How Comparables Influence Property Values in Real Estate, supra note 6; Mayer, supra note 6.

[10] La. Civ. Code art. 2439 (1995).

[11] Id.

[12] Id. art. 2464 (1995).

[13] Id.

[14] See generally Lonegrass, supra note 5, at 117, 229.

[15] La. Civ. Code art. 2442 (2006).

[16] Id. art. 3338 (2006).

[17] Id. art. 3341 (2006).

[18] Id. art. 2440 (1995).

[19] Lonegrass, supra note 5, at 247.

[20] Peter Title, 1 Louisiana Practice Series: Louisiana Real Estate Transactions § 8:2 (Winter 2025 ed).

[21] Id. § 8.3; see also McDuffie v. Walker, 125 So. 100 (La. 1909).

[22] Tooley-Knoblett, supra note 3, at § 8.1.

[23] La. Civ. Code art. 3339 (2006); Knighten v Ruffin, 255 So. 2d 388 (La. Ct. App. 1971); Lonegrass, supra note 5, at 155.

[24] Tooley-Knoblett, supra note 3, at § 8.1.

[25] Lonegrass, supra note 5, at 271.

[26] Id.; see also La. Civ. Code art. 1848 (2012).

[27] Lonegrass, supra note 5, at 271. Parties generally omit the sales price by referencing consideration that is clearly nominal, such as “$1 and other valuable considerations.” See Tremont Lumber Co. v. Powers & Critchett Lumber Co., 139 So. 12, 14 (La. 1932).

[28] Lonegrass, supra note 5, at 271.

[29] See Dugas v. Talley, 109 So. 2d 300 (La. Ct. App. 1959); Versai Mgmt., Inc. v. Monticello Forest Prods. Corp., 479 So. 2d 477 (La. Ct. App. 1985).

[30] Tooley-Knoblett, supra note 3, at § 8.1

[31] Id.

[32] Title, supra note 19, at § 8.2.

[33] La. Civ. Code arts. 517 (2006), 1839 (1985). There are several articles that require the recordation of acts translative of ownership of immovables, and none of them mention that the inclusion of the price is required for effectiveness against third parties. See id. arts. 3338 (2006), 2442 (2006), 2629 (1995).

[34] See Dugas, 109 So. 2d at 300; Versai Mgmt., Inc., 479 So. 2d at 477.

[35] Dugas, 109 So. 2d at 301–02.

[36] Id. at 304.

[37] Id. at 305. If a vendor has a claim for lesion against his vendee, but the vendee has already sold the immovable to a third person, then the vendor may only seek damages against his vendee and may not bring an action against the third person who bought the immovable from the original vendee. See La. Civ. Code arts. 2589 (1995), 2594 (1995).

[38] Dugas, 109 So. 2d at 307–08. A third-party purchaser may have a duty to notice that a recorded sale is a credit sale, which might allow the original seller to dissolve the sale for nonpayment of the purchase price and might result in the seizure of the immovable from the subsequent third-party purchaser. See Groner Apts. v. Controlled Bldg. Sys., 432 So. 2d 1142, 1146 (La. Ct. App. 1983) (“The public records were sufficient to put third parties on notice that the transaction was a credit sale in which a portion of the price remained unpaid and that some day the plaintiff might exercise his right to dissolve the sale against his original vendee for nonpayment of the purchase price.”); see also Robertson v. Buoni, 504 So. 2d 860, 863 (La. 1987) (“A vendor seeking dissolution of the sale may do so even after the property has left the hands of the original purchaser.”).

[39] See generally Dugas, 109 So. 2d at 300.

[40] See Lonegrass, supra note 5, at 271.

[41] The Louisiana First Circuit pointed out in Dugas, “It has become a common practice in this state in leasing and in other transactions of land for mineral purposes not to recite the true consideration in the deed.” Dugas, 109 So. 2d at 305. Along with privacy concerns, businesses may also avoid reciting the true consideration in recorded acts of sale as part of their negotiation strategy for the subsequent sale of the property. See Gatzlaff, supra note 6, at 671 (suggesting that “sellers do not reveal list price information in order to maintain an information advantage and to avoid truncating higher than expected offers, especially during periods of growth or when marketing complex properties”).

[42] See generally Lonegrass, supra note 5, at 271; How Comparables Influence Property Values in Real Estate, supra note 6; Mayer, supra note 6.

[43] See Lonegrass, supra note 5, at 271; Versai Mgmt., Inc. v. Monticello Forest Prods. Corp., 479 So. 2d 477 (La. Ct. App. 1st 1985).

[44] See La. Civ. Code art. 2464 (1995) (“Thus, the sale of a plantation for a dollar is not a sale, though it may be a donation in disguise.”).

[45] Id. art. 2589 (1995); Lonegrass, supra note 5, at 271.

[46] La. Civ. Code art. 2589; Lonegrass, supra note 5, at 271.

[47] See Versai Mgmt., Inc., 479 So. 2d at 486.

[48] Id. at 480, 486.

[49] Id. at 486 n.4.

[50] See Lonegrass, supra note 5, at 271, 477; How Comparables Influence Property Values in Real Estate, supra note 6; Mayer, supra note 6, at 866.

[51] See 4 Things to Know About Home Appraisals, La. Realtors, https://www.larealtors.org/la-realtors-blog/2019/6/17/4-things-to-know-about-home-appraisals [https://perma.cc/J4WM-RJ2R] (last visited Mar. 31, 2026).

[52] Id.

[53] Alesandra Dubin & Jedda Fernandez, How Long Does an Appraisal Take? What Should I Expect as a Buyer?, HomeLight,https://www.homelight.com/blog/buyer-how-long-does-an-appraisal-take/ [https://perma.cc/2W2F-GURQ] (last visited Mar. 31, 2026).

[54] Id.; How Comparables Influence Property Values in Real Estate, supra note 6.

[55] Dubin, supra note 53.

[56] Id.

[57] How Comparables Influence Property Values in Real Estate, supra note 6.

[58] Id.

[59] Mayer, supra note 6, at 863.

[60] How Comparables Influence Property Values in Real Estate, supra note 6.

[61] Id.; Mayer, supra note 6, at 863, 866. Access to traditional credit is essential to a successful housing market because it allows buyers to make long-term investments, such as purchasing a home, that would otherwise be unaffordable. See Access to Credit and Financial Services: A Bridge to Financial Well-being, Fed. Rsrv. Bank of St. Louis, https://www.stlouisfed.org/community-development/publications/access-credit-financial-services-bridge-financial-well-being [https://perma.cc/9PU8-TPMG] (last visited Mar. 31, 2026).

[62] See Lonegrass, supra note 5, at 271.

[63] See id.

[64] How Comparables Influence Property Values in Real Estate, supra note 6; Mayer, supra note 6, at 863.

[65] Tooley-Knoblett, supra note 3, at § 8.1.

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).

By Claire Milburn

Introduction

On January 7, 2026, Immigration and Customs Enforcement agent Jonathan Ross fatally shot Minnesota driver Renee Nicole Good.[1]  Statements by federal officials indicate that Ross, if investigated or charged, would claim he acted in self-defense when faced with the possibility of being hit by Good’s car.[2] One news outlet opined that the legal analysis “could all come down to 399 milliseconds.”[3] Before May 2025, a Minnesota court would have considered only that split second when analyzing a possible Fourth Amendment claim against Ross because the United States Court of Appeals for the Eighth Circuit looked only to the moment of threat when analyzing a deadly force claim.[4] Louisiana courts were similarly bound by the moment-of-the-threat doctrine, which was created by the United States Court of Appeals for the Fifth Circuit.[5] Recently, the United States Supreme Court rejected the moment-of-the-threat doctrine in Barnes v. Felix,changing the way courts analyze Fourth Amendment claims where an officer uses deadly force out of fear for his or her own life.[6] Barnes instructs courts to consider the totality of the circumstances, so Louisiana courts will now need to broaden the timeline.[7] The Supreme Court, however, failed to address whether courts should also consider whether an officer created an unreasonable risk of danger.[8]

I. Background

The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures.[9] The Supreme Court has held that an officer’s use of deadly force is a seizure under the Fourth Amendment, so it is subject to the Fourth Amendment’s reasonableness requirement.[10] In Graham v. Conner, the Supreme Court instructed that excessive force claims should be evaluated under an “objective reasonableness” standard considering the totality of the circumstances.[11] Over time, the Fifth Circuit narrowed the objective reasonableness test in deadly force cases and instructed courts to consider only “the moment of the threat that resulted in the [ ] shooting.”[12] The Second, Fourth, and Eighth Circuits followed and adopted the moment-of-the-threat doctrine, while the remaining circuits maintained a totality of the circumstances analysis.[13]

Barnes v. Felix brought the moment-of-the-threat doctrine to the Supreme Court in 2025.[14] The underlying case concerned officer Roberto Felix’s shooting of Ashtian Barnes.[15] According to Judge Higginbotham’s concurrence from the Fifth Circuit, Felix’s actions were likely reasonable during the two seconds before he shot, but may have been unreasonable under the totality of the circumstances.[16] Thus, the case presented the Court with an opportunity to examine the moment-of-the-threat doctrine.[17]

On April 28, 2016, Felix, a law enforcement officer in the Houston area, pulled Barnes over on the side of a highway after receiving a radio alert about outstanding toll violations on the Toyota Corolla Barnes was driving.[18] Following a short exchange in which Barnes told Felix that he did not have his license on him, and that the car was a rental in his girlfriend’s name, Felix told Barnes to get out of the car.[19] Barnes opened the door to the car but turned the ignition back on instead of exiting.[20] Felix then unholstered his gun.[21] The car began to move forward, and Felix jumped onto the edge of the door, hanging on the door as the car accelerated.[22] Felix, with no visibility into the car because his head was above the roof, fired two shots into the vehicle.[23] Barnes managed to stop the car despite being shot.[24] By the time emergency services arrived, Barnes had died from his gunshot wounds.[25] Barnes’s mother brought an excessive force claim against Felix on her son’s behalf.[26]

The district court followed the narrow moment-of-the-threat doctrine and considered only “the two seconds before Felix fired his first shot” when assessing whether Felix was in danger at the time he deployed deadly force.[27] The district court determined that “‘the moment of threat’ occurred after Felix jumped onto the door sill.”[28] The Fifth Circuit affirmed, explaining that the inquiry is limited to whether an officer was “in danger at the moment of the threat that resulted in [his or her] use of deadly force.”[29] Judge Higginbotham expressed concern in his concurrence that the moment-of-the-threat doctrine was inconsistent with Supreme Court precedent.[30] Judge Higginbotham explained that under the moment-of-the-threat doctrine, he found the use of force reasonable; however, he would have reached the opposite conclusion considering the totality of the circumstances.[31]

Garner instructs that using deadly force to stop a fleeing suspect is only reasonable where a fleeing suspect poses an immediate threat to the officer or others.[32] Judge Higginbotham identified two facts that would have made Felix’s decision to use deadly force unreasonable under a totality of the circumstances analysis.[33] First, a toll violation does not prompt suspicion of danger.[34] Barnes was stopped for outstanding toll violations associated with his girlfriend’s rental car, and none of those violations are arrestable offenses under Texas state law.[35] Importantly, Barnes was not stopped for a violent offense.[36] The reason for the traffic stop did not raise suspicion that Barnes posed a danger to Felix or others.[37] Second, Barnes decided to flee before Felix jumped onto the running board of Barnes’s car.[38] This point is important because Barnes’s flight was not prompted by Felix’s decision to jump on the car, and Felix shot Barnes two seconds later.[39] In those two seconds, Barnes likely did not have the opportunity to stop the car and end the threat to Felix’s safety. Therefore, Felix’s decision to jump onto the car with his gun already drawn was an important fact, but the district court and the Fifth Circuit could not consider that decision.[40]

II. The Supreme Court Rejects the Moment-of-the-Threat Doctrine

Once Barnes reached the Supreme Court, the Court explicitly rejected the moment-of-the-threat doctrine.[41] The Court explained that the question in an excessive force claim is “whether the force deployed was justified from ‘the perspective of a reasonable officer on the scene,’ taking due account of both the individual interests and the governmental interests at stake.”[42] This is a fact-specific inquiry that takes into account “the ‘severity of the crime,’” the “actions the officer took during the stop,” and “the stopped person’s conduct.”[43] Justice Kagan clarified in her majority opinion that “the situation at the precise time of the shooting will often be what matters most . . . [b]ut earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.”[44] While the moment of the threat is certainly relevant to the analysis and carries significant weight, the Court instructed that all relevant facts must be considered.[45]

In this particular case, the officer argued for the moment-of-the-threat doctrine, but Justice Kagan pointed out that considering the totality of the circumstances can benefit the officer too.[46] For example, in Plumhoff, the fact that the driver had engaged in a “dangerous” car chase in the several minutes leading up to the shooting was used to justify the officer’s use of deadly force.[47] The Plumhoff Court explained that the officer’s actions were reasonable based on the events leading up to the use of deadly force.[48] If courts only considered “the instant when the chased car was at a ‘near standstill,’” then the officer’s actions may not have been reasonable.[49] Thus, a totality of the circumstances analysis may favor the officer or the suspect.

Justice Kavanaugh, joined by Justices Thomas, Alito, and Barrett in his concurrence, sounded the alarm about second-guessing an officer’s method of dealing with a fleeing suspect.[50] The concurrence cautioned against placing too much weight on the reason for the stop.[51] Any traffic stop could become dangerous “even if a driver is pulled over for nothing more than a speeding violation, a broken taillight, or the like.”[52] Justice Kavanaugh discussed the dangers associated with letting the driver go, giving chase from a vehicle, shooting out the tires of the fleeing car, or jumping onto the car, concluding that “when a driver abruptly pulls away during a traffic stop, an officer has no particularly good or safe options” and “[n]one of the options available to the officer avoids danger to the community.”[53] The Fifth Circuit adopted this reasoning on remand.[54]

III. Officer Created Danger Goes Unanswered

After Barnes, Louisiana courts will need to consider the totality of the circumstances leading up to a use of deadly force, but it remains unclear whether courts should consider if the officer created a dangerous situation that made the use of force necessary.[55] Only the Ninth and Tenth Circuits have adopted an officer created danger rule.[56] At oral argument, counsel for Barnes clarified that the petitioner was not seeking an officer created danger test.[57] Further, Justice Kagan explained that the question of whether the analysis should consider an officer’s “creation of a dangerous situation” was not properly before the Court, “precisely because [the lower court] inquiry was so time-bound.”[58] In limiting its analysis to the two seconds before the officer used deadly force, the lower court excluded any actions that allegedly created the danger, such as Felix’s decision to jump onto the sill of the moving car.[59]

Nevertheless, at oral argument the Court was concerned with whether an officer’s decision to jump onto or in front of a car could ever be reasonable.[60] Counsel for Barnes asserted that the “tragic terrorist attack in New Orleans” was an example of a case where jumping in front of a vehicle may be reasonable, explaining:

If an officer had jumped in front of the car and shot the driver, that officer would be a hero, and it’s because the state interest in that case in seizing that terrorist is incredibly high. Again, that’s the type of balancing that the Fifth Circuit just couldn’t engage in in this case.[61]

This example shows that, according to Barnes’s counsel, a totality of the circumstances test does not mean that jumping in front of a vehicle is never reasonable, even though Felix’s decision may have been unreasonable. Judge Higginbotham insisted that Felix’s actions would be unreasonable if the Fifth Circuit had engaged in a totality of the circumstances analysis; however, after the case was remanded, Judge Higginbotham authored a unanimous opinion reaching the opposite conclusion.[62] On remand, the Fifth Circuit evaluated the totality of the circumstances and found that when Felix made the “split-second decision” to step onto the sill of the car, he was faced with “only bad options,” and thus he did not act unreasonably.[63] This conclusion leaned heavily on considerations from Justice Kavanaugh’s concurrence.[64]

The Fifth Circuit evaluated the reasonableness of Felix’s decision to jump onto the sill of the car, which would have been impermissible under the moment-of-the-threat doctrine, but the court concluded that because Barnes was attempting to flee, Felix was faced with “only bad options.”[65] This reasoning, which runs parallel to Justice Kavanaugh’s concurrence, appears to foreclose the possibility that an officer’s actions could ever be unreasonable, so long as the suspect is fleeing, because all options are bad.[66] Justice Kavanaugh did not give guidance for determining which option is worse and instead cautioned against parsing the options in this way.[67] It is unclear how many courts across the nation will adopt Justice Kavanaugh’s reasoning, but courts in the Fifth Circuit may choose to adopt the principle that officers are only faced with bad options when a suspect is fleeing.

If a court determines that an officer faced with a fleeing suspect only has bad options, as the Fifth Circuit did on remand, impliedly any of those options are acceptable, including the use of deadly force. One counterpoint to this principle is the officer created danger doctrine. The Tenth Circuit requires consideration of whether an officer’s “reckless conduct created the need to use deadly force.”[68] The Ninth Circuit follows a similar approach.[69] For courts that choose to adopt the reasoning in Justice Kavanaugh’s concurrence, the officer created danger doctrine could serve as a stopping point on the continuum of bad options. Combining these methods, all options are equally bad options until the officer’s conduct becomes reckless. At the point of recklessness, the officer’s actions become unreasonable. A blend of these analyses could strike an appropriate balance between preserving a suspect’s Fourth Amendment rights and enabling officers to protect themselves and the public. Unfortunately, the Court declined to address the officer created danger doctrine in Barnes, so it is unclear whether this approach is permissible.[70]

Conclusion

Following Barnes, Louisiana courts must expand the analysis of an officer’s use of deadly force to include the totality of the circumstances, not just the moment of the threat.[71] The Court declined to address the officer created danger doctrine, so it is unclear whether courts may decide that an officer’s use of deadly force was unreasonable because his or her reckless actions created the need to use force.[72] If more courts choose to adopt the reasoning in Justice Kavanaugh’s concurrence that officers do not have any good options when faced with a fleeing suspect, the officer created danger doctrine may become more relevant as a useful stopping point for the analysis. A recent growing interest in the use of deadly force against drivers makes it likely that this issue will come before the Supreme Court again.[73]

[1] Liz Sawyer, Andy Mannix & Sarah Nelson, Star Tribune Identifies ICE Agent Who Fatally Shot Woman in Minneapolis, Minn. Star Trib. (Jan. 8, 2026), https://web.archive.org/web/20260108204249/ [https://perma.cc/TN43-Q347] https://www.startribune.com/ice-agent-who-fatally-shot-woman-in-minneapolis-is-identified/601560214 [https://perma.cc/WMS7-CU7T].

[2] Kerem Inal et al., Minneapolis ICE shooting: A minute-by-minute timeline of how Renee Nicole Good died, ABC News (Jan. 9, 2026), https://abcnews.go.com/US/minneapolis-ice-shooting-minute-minute-timeline-renee-nicole/story?id=129021809 [https://perma.cc/8CZ8-RS7P].

[3] Id.

[4] See Brief for Petitioner at 2, Barnes v. Felix, 605 U.S. 73 (2025) (No. 23-1239).

[5] Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (quoting Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001)).

[6] Barnes v. Felix, 605 U.S. 73 (2025) [hereinafter Barnes I].

[7] Id.

[8] Id.

[9] U.S. Const. amend. IV.

[10] Tennessee v. Garner, 471 U.S. 1, 11 (1985).

[11] Graham v. Connor, 490 U.S. 386, 388, 396 (1989). Plaintiffs must show both that the action was objectively unreasonable and that precedent “placed the statutory or constitutional question beyond debate” under a qualified immunity analysis, but this analysis focuses on the reasonableness inquiry. White v. Pauly, 580 U.S. 73, 78–79 (2017).

[12] Harris v. Serpas, 745 F.3d 767, 772 (5th Cir. 2014) (quoting Bazan v. Hidalgo Cnty., 246 F.3d 481, 493 (5th Cir. 2001)).

[13] Courts that use the totality of the circumstances doctrine may consider pre-seizure conduct of both the officer and the suspect when assessing whether an officer’s decision to use deadly force was reasonable. Courts using the moment-of-the-threat doctrine only consider the moment in which the officer decided to use deadly force. See Brief for Petitioner at 2, Barnes I, 605 U.S. 73 (2025) (No. 23-1239).

[14] Barnes I, 605 U.S. 73 (2025).

[15] Id.

[16] See Barnes v. Felix, 91 F.4th 393, 398 (5th Cir. 2024) (Higginbotham, J., concurring) [hereinafter Barnes II].

[17] Seth Soughton, Barnes v. Felix: The Supreme Court Reaffirms “Totality of the Circumstances” Review in Use of Force Cases, 2 Applied Police Briefings (July 18, 2025), https://doi.org/10.22215/apb.v2i3.5523 [https://perma.cc/8HXZ-M5SV].

[18] Barnes I, 605 U.S. at 76.

[19] Id. at 77.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id. Barnes’s mother brought a claim that Felix violated Barnes’s Fourth Amendment rights under 42 U.S.C. § 1983.

[27] Barnes I, 605 U.S. at 78 (quoting Barnes v. Felix, 532 F. Supp. 3d 463, 468 (S.D. Tex. 2021) [hereinafter Barnes III]).

[28] See Barnes II, 91 F.4th 393, 399 n.9 (5th Cir. 2024) (citing Barnes III, 532 F. Supp. 3d at 468).

[29] Barnes II, 91 F.4th at 397.

[30] Barnes I, 605 U.S. at 78 (quoting Barnes II, 91 F.4th at 399).

[31] Barnes I, 605 U.S. at 78 (citing Barnes II, 91 F.4th at 401).

[32] Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

[33] Barnes II, 91 F.4th at 401.

[34] Id. at 399.

[35] Id. (citing Tex. Transp. Code § 370.177 (2019)).

[36] Barnes II, 91 F.4th at 399.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Barnes I, 605 U.S. 73 (2025).

[42] Id. at 79 (quoting Graham v. Connor, 490 U.S. 386, 369 (1989)).

[43] Barnes I, 605 U.S. at 80 (quoting Tennessee v. Garner, 471 U.S. 1, 11–12 (1985)); see also Scott v. Harris, 550 U.S. 372, 382–83 (2007).

[44] Barnes I, 605 U.S. at 80.

[45] Id.

[46] Id.

[47] Plumhoff v. Rickard, 572 U.S. 765, 768 (2014).

[48] Id. at 777.

[49] Barnes I, 605 U.S. at 82 (quoting Plumhoff, 572 U.S. at 776).

[50] Barnes I, 605 U.S. at 85.

[51] Id.

[52] Id.

[53] Id. at 89.

[54] Barnes v. Felix, 152 F.4th 669, 674 (5th Cir. 2025) [hereinafter Barnes IV] (citing Barnes I, 605 U.S. at 89).

[55] Barnes I, 605 U.S. 73.

[56] See Brief for Respondent at 49, Barnes I, 605 U.S. 73 (2025) (No. 23-1239); Winkler v. City of Phx., 849 F. App’x 664, 666–67 (9th Cir. 2021); Flores v. Henderson, 101 F.4th 1185 (10th Cir. 2024).

[57] Transcript of Oral Argument at 14, Barnes I, 605 U.S. 73 (2025) (No. 23-1239).

[58] Barnes I, 605 U.S. at 83–84.

[59] Id. at 84.

[60] Transcript of Oral Argument at 24, Barnes I, 605 U.S. 73 (2025) (No. 23-1239).

[61] Id.

[62] Barnes II, 91 F.4th 393, 401 (5th Cir. 2024); Barnes IV, 152 F.4th 669 (5th Cir. 2025).

[63] Barnes IV, 152 F.4th 669, 676 (5th Cir. 2025).

[64] Id. One scholar asserted that both Kavanaugh’s concurrence and the Fifth Circuit’s opinion on remand conflated flight doctrines with noncompliance. Fourth Amendment — Excessive Force – Criminal Procedure — Barnes v. Felix, 139 Harv. L. Rev. 291, 301 (2025).

[65] Barnes IV, 152 F.4th at 676.

[66] Id.; Barnes I, 605 U.S. 73, 89 (2025).

[67] Barnes IV, 152 F.4th at 676.

[68] Arnold v. City of Olathe, 35 F.4th 778, 790 (10th Cir. 2022).

[69] Winkler v. City of Phx, 849 F. App’x 664, 667 (9th Cir. 2021); see also County of L.A. v. Mendez, 581 U.S. 420 (2017).

[70] Barnes I, 605 U.S. at 83–84.

[71] Id.

[72] Id.

[73] Tim Arango, Agents in Trump’s Immigration Crackdown Have Fired at Vehicles at Least 10 Times, The N. Y. Times (Jan. 9, 2026), https://www.nytimes.com/2026/01/09/us/immigration-agents-shooting-vehicles.html [https://perma.cc/2ZB5-SMSM]; What to know about the rules for officers firing at a moving vehicle, Associated Press (Jan. 8, 2026), https://www.wbur.org/news/2026/01/08/what-to-know-rules-officers-firing-moving-vehicle [https://perma.cc/UK6Z-GY6U];  Ben Jones, ICE killing of driver involved tactics many police departments warn against − but not ICE itself, Kan. Reflector (Jan. 10, 2026), https://kansasreflector.com/2026/01/10/ice-killing-of-driver-involved-tactics-many-police-departments-warn-against-%E2%88%92-but-not-ice-itself/ [https://perma.cc/WSA6-D2YK]; U.S. Dep’t of Homeland Sec., DHS Law Enforcement Experienced More Than 180 Vehicle Attacks Since President Trump Took Office (Feb. 3, 2026), https://www.dhs.gov/news/2026/02/03/dhs-law-enforcement-experienced-more-180-vehicle-attacks-president-trump-took [https://perma.cc/HCL2-L8G4].

By Jacob D. Palkowski

Introduction

Prudence has always been the cornerstone of fiduciary investing, but what prudence looks like has changed. From the cautious prudent man rule to the portfolio-based standards of the Uniform Prudent Investor Act, trust law has evolved alongside financial theory. Now, as artificial intelligence enters the investment process, the same framework must determine whether delegating to algorithms can still satisfy fiduciary responsibility.

I. The Evolution From the Prudent Man Rule to the Prudent Investor Rule

The prudent investor rule is a modern fiduciary standard that evolved from the 19th century prudent man rule, fundamentally transforming how trustees and other fiduciaries are expected to manage trust investments.[1] Its origins trace back to the landmark 1830 Massachusetts Supreme Judicial Court decision in Harvard College v. Amory, which established the foundation of the prudent man rule.[2] In that case, the Massachusetts Supreme Judicial Court held that trustees must “observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested.”[3] This formulation emphasized capital preservation and evaluated prudence on an investment-by-investment basis.[4]

For more than 160 years, the prudent man rule dominated trust law.[5] Trustees generally had to assess each investment on its own and avoid speculative or higher-risk investments.[6] As articulated in Withers v. Teachers’ Retirement System of New York, under the traditional rule, “the focus of the court’s inquiry is the individual investment itself rather than the performance of the portfolio as a whole.”[7] Over time, however, this approach became increasingly anachronistic. The rise of modern investment theory, coupled with sustained inflationary pressures from the 1970s through the mid-1990s, exposed the limitations of overly conservative investment strategies that prioritized nominal capital preservation at the expense of long-term growth.[8]

II. The Uniform Prudent Investor Act and the Shift to Portfolio-Level Analysis

The transition to the modern prudent investor rule occurred primarily through state adoption of the Uniform Prudent Investor Act (UPIA), which has now been enacted in most jurisdictions.[9] The UPIA fundamentally shifted fiduciary investment analysis away from individual assets and toward portfolio-wide performance, explicitly incorporating principles of modern portfolio theory developed by economists such as Harry Markowitz.[10]

Under the UPIA framework, trustees are required to diversify trust assets unless they reasonably determine that, because of special circumstances, the purposes of the trust are better served by a non-diversified strategy.[11] This requirement represents a significant departure from traditional trust law. As the Virginia Supreme Court observed in Carlson v. Wells, the prudent investor rule permits fiduciaries to engage in measured risk-taking in pursuit of higher returns and evaluates fiduciary conduct based on the overall performance of the portfolio rather than the success or failure of individual investments.[12]

III. Delegation Under the Modern Prudent Investor Framework

Historically, trust law strongly resisted the delegation of investment authority. Although the Restatement (First) of Trusts (1935) and the Restatement (Second) of Trusts (1957) recognized that no particular type of investment was per se forbidden, they maintained a restrictive view of delegation.[13] The Restatement (Second) of Trusts stated that “the trustee is under a duty to the beneficiary not to delegate to others the doing of acts which the trustee can reasonably be required personally to perform.”[14] Commentators to Section 225 further emphasized that delegation of investment duties was generally improper, leaving trustees with the difficult task of determining which responsibilities could permissibly be delegated.[15]

This restrictive approach changed with the adoption of the Restatement (Third) of Trusts in 1992, which sought to modernize trustees’ investment management powers in light of contemporary financial practices.[16] The principles articulated in the Restatement (Third) directly informed the UPIA, which expressly permits trustees to delegate investment and management functions, subject to defined procedural safeguards.[17]

Under Uniform Trust Code Section 807 and Section 9 of the UPIA, a trustee may delegate duties and powers to an agent if the trustee exercises reasonable care, skill, and caution in: (1) selecting the agent; (2) establishing the scope and terms of the delegation consistent with the purposes and terms of the trust; and (3) periodically reviewing and monitoring the agent’s actions to ensure compliance with the delegation.[18]

Notably, the UPIA does not define the term “agent.”[19] This omission reflects the Act’s intentionally flexible, process-oriented framework. Rather than prescribing specific qualifications or professional credentials, the UPIA focuses on the trustee’s conduct in selecting and supervising the agent and imposes a duty on the agent to exercise reasonable care in performing delegated functions.[20] As a result, trustees may delegate to a wide range of appropriate professionals—including investment advisors, attorneys, auditors, and other specialists—so long as the statutory standards of prudence are satisfied.[21]

IV. The Use of Artificial Intelligence in Investment Management

Artificial intelligence (AI) has become an increasingly influential tool in modern investment management, reshaping how investment decisions are generated, implemented, and monitored across the financial services industry.[22] AI applications—such as robo-advisors that allocate assets, chatbots that handle routine communications, and risk-analysis tools—operate much like delegated agents, performing administrative and investment functions while the trustee retains ultimate fiduciary responsibility.[23] Collectively, these technologies facilitate automated financial recommendations, portfolio management, and contract execution through digital platforms supported by machine learning.[24]

The growing reliance on AI-driven investment tools has prompted heightened regulatory attention.[25] In July 2023, the Securities and Exchange Commission proposed new rules addressing conflicts of interest arising from broker-dealers and investment advisers’ use of predictive analytics and artificial intelligence.[26] The proposal targets the use of “covered technology,” including AI, machine learning, and other predictive analytic tools used in investor interactions.[27] Under the proposed framework, firms would be required to eliminate or neutralize conflicts of interest when AI systems place the firm’s interests ahead of investors’, such as when algorithms are designed to optimize firm revenue, data collection, or proprietary product placement rather than investor welfare.[28] The proposed rules also require firms to adopt written policies and procedures governing AI use and to maintain records documenting compliance.[29]

The Commodity Futures Trading Commission (CFTC) has taken a parallel approach, emphasizing that the adoption of AI does not displace existing regulatory obligations.[30] In a recent staff advisory, the CFTC clarified that all regulated entities must remain in compliance with the Commodity Exchange Act and applicable CFTC regulations regardless of whether AI tools are developed internally or procured from third-party vendors.[31] The advisory, while not intended as a standalone compliance checklist, highlights existing regulatory requirements that AI adoption may implicate.[32] The staff advisory further stresses the need for entities to assess AI-related risks and to update policies, procedures, controls, and systems as appropriate, subjecting AI implementation to the same compliance review as any other material change in investment processes.[33]

Taken together, these regulatory developments highlight that the use of AI in investment management does not diminish fiduciary responsibility, but instead reframes how traditional duties must be discharged.[34] As trustees may increasingly rely on AI-driven systems to inform or execute investment decisions, the UPIA provides the relevant framework for evaluating whether such reliance constitutes prudent delegation, particularly with respect to the fiduciary obligations of selection, oversight, and accountability.[35]

V. Delegation of Investment Authority to AI Under the Prudent Investor Rule

Case law interpreting the UPIA’s delegation provisions consistently emphasizes the delegating fiduciary’s retained responsibilities rather than the characteristics of the agent itself.[36] When courts analyze compliance with the UPIA, they focus on whether the fiduciary exercised prudence in the delegation process—selection, scope, and oversight—rather than on who or what performed the delegated function.[37]

In O’Neill v. O’Neill, the Ohio Court of Appeals articulated a three-part delegation framework under Ohio’s version of the UPIA, requiring fiduciaries to: (1) prudently select an agent; (2) establish the scope and terms of the delegation consistent with the purposes and terms of the trust; and (3) periodically review the agent’s actions to ensure compliance with the delegation.[38] This framework emphasizes that delegation does not relieve fiduciaries of responsibility, but instead shifts the analysis to whether the fiduciary’s ongoing oversight satisfies the statutory standard of care.[39]

Similarly, in In re Estate of Cooper, the court clarified that fiduciaries “shall not be responsible for the investment decisions or actions of the investment agent” when they fulfill their procedural obligations of prudent selection, scope establishment, and periodic review.[40] Therefore, the focus remains on whether the fiduciary properly executed these three core responsibilities rather than on the agent’s credentials, technology, or decision-making methodology.[41]

Notably, research across federal and state jurisdictions reveals no statutory provisions that categorically prohibit AI systems from serving as investment agents under the UPIA. In Knight v. Commissioner, the United States Supreme Court observed that 44 states and the District of Columbia have adopted versions of the UPIA, with the remaining states adopting comparable prudent investor standards.[42] This widespread adoption has produced a largely uniform delegation framework that does not exclude nontraditional or technology-based agents.[43]

A. Delegating to AI Under the UPIA

AI delegation may be permissible under the UPIA if appropriate oversight mechanisms are in place.[44] As the Woodward School court observed, even when trustees receive investment advice, “a trustee is not required to follow it,” emphasizing that the fiduciary remains ultimately responsible for investment decisions.[45] Applied to AI, this principle requires trustees to maintain meaningful oversight and retain the ability to intervene when the AI’s decisions conflict with trust purposes or beneficiary interests.[46]

Under the prudent selection standard, delegation to AI would likely require extensive due diligence.[47] The New York Surrogate’s Court has observed that delegation must be “consistent with the duty to exercise skill, including special investment skills.”[48] Accordingly, trustees delegating investment functions to AI must carefully assess the system’s capabilities, track record, and limitations prior to implementation.[49]

The prudent investor standard further underscores the trustee’s continuing responsibilities.[50] Trustees must “invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust.”[51] When delegating to AI, this standard will require trustees to confirm that the system is capable of considering these contextual factors and to supplement automated decision making with human oversight to address any limitations in the AI’s reasoning or data.[52]

B. The Steps to Delegate to AI Under the UPIA

Proper delegation under the UPIA is governed by a set of procedural safeguards designed to preserve fiduciary accountability while permitting trustees to rely on specialized expertise.[53] Section 9 of the UPIA expressly authorizes trustees to delegate investment and management functions, provided that they exercise reasonable care, skill, and caution in doing so.[54] When applied to AI-based investment systems, this framework does not prohibit delegation to nontraditional agents, but instead conditions its permissibility on the fiduciary’s adherence to three core requirements: prudent selection, clearly defined delegation terms, and ongoing monitoring.[55]

First, UPIA Section 9(a) requires trustees to exercise reasonable care, skill, and caution in selecting an agent.[56] In the context of AI delegation, this obligation translates into a duty to evaluate the system’s design, capabilities, and reliability in light of the trust’s investment objectives.[57] Prudent selection may include assessing the AI system’s historical performance, underlying data sources, decision-making methodologies, built-in risk controls, and susceptibility to conflicts of interest or bias.[58] Where AI systems are provided by third-party vendors, trustees must also consider the vendor’s expertise, transparency, and compliance infrastructure.[59] Importantly, the UPIA does not require the agent to meet the fiduciary’s own standard of care; rather, it requires the fiduciary to act prudently in the selection process itself.[60] Since many AI systems operate as opaque “black-box[es],” their limited transparency and explainability may make it more difficult for trustees to demonstrate that they satisfy this statutory duty of prudent selection under UPIA Section 9(a).[61]

Second, UPIA Section 9(a)(2) requires trustees to establish the scope and terms of the delegation in a manner consistent with the purposes and terms of the trust.[62] Applied to AI systems, this requirement demands that trustees define the boundaries of algorithmic authority with specificity.[63] Trustees must determine which investment functions may be automated, the asset classes or strategies the AI may employ, applicable diversification requirements, risk tolerances, liquidity constraints, and performance benchmarks.[64] Clear delegation terms also require trustees to retain authority over material decisions, such as changes to investment objectives or deviations from trust terms.[65] By constraining AI discretion through clearly articulated parameters, trustees ensure that automated decision making remains aligned with fiduciary objectives rather than operating autonomously or opaquely.[66]

Third, UPIA Section 9(a)(3) imposes an ongoing duty to monitor the agent’s performance and compliance with the delegation terms.[67] This monitoring obligation is particularly critical in the AI context where automated systems may evolve over time through machine learning or adaptive algorithms.[68] Trustees must periodically review investment outcomes, test compliance with defined constraints, and assess whether the AI system continues to serve the trust’s purposes.[69] Monitoring also includes reviewing system updates, model changes, and performance anomalies, as well as reevaluating the delegation in response to market conditions or changes in trust circumstances.[70] Passive reliance on automation, without meaningful review, would be inconsistent with the UPIA’s requirement of continued fiduciary oversight.[71]

Taken together, these safeguards demonstrate that the UPIA’s delegation provisions are process-oriented rather than agent-specific.[72] The Act does not require an agent to be human, nor does it exclude technologically mediated decision-makers.[73] Instead, it conditions lawful delegation on whether the trustee has exercised prudence in selecting, structuring, and supervising the delegated function.[74] When trustees implement these procedural protections, AI systems can likely function as permissible agents under the UPIA, serving as tools of delegated investment management rather than substitutes for fiduciary responsibility.[75]

Conclusion

The evolution from the prudent man rule to the modern prudent investor framework reflects trust law’s enduring commitment to process over form. As investment management has grown more complex, the UPIA has responded not by restricting innovation, but by insisting that fiduciary discretion be exercised through prudent selection, defined delegation, and ongoing oversight. AI fits squarely within this framework. When deployed with appropriate safeguards, AI does not displace fiduciary judgment but operates as a delegated tool subject to the trustee’s continuing responsibility. The UPIA’s flexible, process-oriented delegation provisions thus provide a principled basis for accommodating emerging technologies while preserving the core fiduciary obligations of prudence, loyalty, and accountability.

[1] ALI, Looking Back on 25 Years of The Prudent Investor Rule (July 16, 2015), https://www.ali.org/news/articles/looking-back-25-years-prudent-investor-rule [https://perma.cc/8R5F-53GR].

[2] See Harv. Coll. v. Amory, 9 Pick. 446 (Mass. 1830).

[3] Id. at 461.

[4] Franke Beckett, 5.1 The “Prudent Man Standard”, https://frankebeckett.com/articles/5-1-prudent-man-standard/#:~:text=The%20prudent%20man%20standard%20is%20a%20common%2Dlaw,applied%20by%20courts%20on%20an%20investment%2Dby%2Dinvestment%20basis[https://perma.cc/6S66-ACT5] (last visited Feb. 3, 2026). Under the “prudent man” standard, trustees must invest carefully by limiting risk, focusing on long-term growth, and generating a reasonable level of income. M. Gayle Robinson, EPIC Article I, Part 5: The Prudent Investor Rule, SMB (Mar. 2000), https://www.michbar.org/journal/article?articleID=46&volumeID=6&…#:~:text=The%20Prefatory%20Note%20to%20the,now%20permitted%2C%20subject%20to%20safeguards[https://perma.cc/J7FU-E7T3].

[5] Martin D. Begleiter, Does the Prudent Investor Need the Uniform Prudent Investor Act – An Empirical Study of Trust Investment Practices, 51 Me. L. Rev. 27, 28 (1999).

[6] See In re Cook’s Tr. Est., 171 A. 730, 731 (Del. Ch. 1934).

[7] Withers v. Tchrs.’ Ret. Sys. of N.Y., 447 F. Supp. 1248, 1255 (S.D.N.Y. 1978).

[8] Raymond Radigan & Jennifer F. Hillman, The Evolution of Prudence in Trustee Investing, N.Y. L.J. (July 9, 2013), https://rmfpc.com/wp-content/uploads/2022/08/The-Evolution-of-Prudence-in-Trustee-Investing.pdf [https://perma.cc/C82A-4Z93].

[9] Uniform Prudent Investor Act, Legal Info. Inst., https://www.law.cornell.edu/wex/uniform_prudent_investor_act [https://perma.cc/U49J-V6QY](last visited Feb 3, 2026). The UPIA establishes standards governing trustees’ investment and management of trust assets. Unif. L. Comm’n, Prudent Investor Act, https://www.uniformlaws.org/committees/community-home?CommunityKey=58f87d0a-3617-4635-a2af-9a4d02d119c9 [https://perma.cc/2KEU-TTU9] (last visited Feb. 10, 2026). In fulfilling these duties, trustees must consider a range of relevant factors, including the tradeoff between risk and return, the beneficiaries’ needs and circumstances, the effects of inflation or deflation, general economic conditions, potential tax consequences, and the beneficiaries’ requirements for liquidity, income, or preservation of capital. Id.

[10] Jeremy Lau, The Prudent Investor Rule and UPIA: Intro To Trustee Investing, Prudent Invs. (Apr. 26, 2023), https://www.prudentinvestors.com/blog/the-prudent-investor-rule-and-upia-intro-to-trusting-investing/ [https://perma.cc/2TXC-UJEJ]. Modern Portfolio Theory, developed by Harry Markowitz, provides a framework that helps fiduciaries manage investment portfolios more effectively. Id. The theory is built on three core principles: (i) the relationship between risk and return; (ii) diversification; and (iii) correlation among assets. Id. Under this framework, risk is reduced primarily through diversification, which in turn depends on analyzing correlations between assets to ensure the portfolio is properly diversified. Id.

[11] Tex. Prop. Code Ann. § 117.005 (2024).

[12] Carlson v. Wells, 705 S.E.2d 101, 106 (Vir. 2011).

[13] Charles M. Bennett, When the Fiduciary’s Agent Errs—Who Pays the Bill—Fiduciary, Agent, or Beneficiary?, 28 Real Prop., Prob & Tr. J. 429, 444 (1993).

[14] Restatement (Second) of Trusts § 171 (A.L.I. 1957).

[15] Id. § 225. A trustee’s responsibilities fall into three main areas: administration, investment management, and discretionary distributions. Quinn DeAngelis, What Should You Delegate, DeAngelis Legal (June 15, 2021), https://www.deangelislegal.com/delegation-of-trustee-powers/ [https://perma.cc/MZ7D-JDDM]. Trustees commonly delegate administrative tasks and investment management. They should not delegate core discretionary decisions, however, especially distribution determinations, or functions they are uniquely qualified to perform. Id.

[16] Bennett, supra note 13.

[17] Unif. Prudent Inv. Act § 9 (Unif. L. Comm’n 1994).

[18] Id.; see also Unif. Tr. Code § 807 (Unif. L. Comm’n 2000, amended 2010).

[19] See generally Unif. Prudent Inv. Act.

[20] See id. § 9.

[21] Id. § 9 cmts.

[22] Larry Cao, Handbook of Artificial Intelligence and Big Data Applications in Investments, CFA Inst. Res.  Found. (Mar. 27, 2023), https://rpc.cfainstitute.org/research/foundation/2023/ai-and-big-data-in-investments-handbook [https://perma.cc/Z2PW-NAYW].

[23] Darko B. Vuković, Senanu Dekpo-Adza & Stefana Matović, AI integration in financial services: a systematic review of trends and regulatory challenges, Human. Soc. Sci. Commun. 12, 562 (2025) https://doi.org/10.1057/s41599-025-04850-8 [https://perma.cc/8MH5-HA96].

[24] Id.

[25] Id.

[26] Pablo J. Man, A New Frontier: The SEC Addresses Artificial Intelligence (And A Whole Lot More), K&L Gates (Aug. 16, 2023), https://www.klgates.com/A-New-Frontier-The-SEC-Addresses-Artificial-Intelligence-and-a-Whole-Lot-More-8-16-2023 [https://perma.cc/QNC5-7AFN].

[27] Id.

[28] Id.

[29] Id.

[30] Latham & Watkins LLP, CFTC Issues Staff Advisory on the Use of Artificial Intelligence in CFTC-Regulated Markets (Dec. 20, 2024), https://www.lw.com/admin/upload/SiteAttachments/CFTC-Issues-Staff-Advisory-on-the-Use-of-Artificial-Intelligence-in-CFTC-Regulated-Markets.pdf [https://perma.cc/V6HG-7WQ7].

[31] Id.

[32] Id.

[33] Id.

[34] See generally Man, supra note 26; see also Latham & Watkins LLP, supra note 30.

[35] Unif. Prudent Inv. Act § 9 (Unif. L. Comm’n 1994).

[36] See Matter of Wellington Trs., 165 A.D.3d 809 (2018); see also O’Neill v. O’Neill, 169 Ohio App. 3d 852 (2006).

[37] O’Neill, 865 N.E.2d at 920–23.

[38] Id.

[39] Id.

[40] See In re Est. of Cooper, No. 4801COF1998, 2005 WL 3739300, at *5 (Pa. Com. Pl. June 7, 2005).

[41] Id.

[42] Knight v. Comm’r., 552 U.S. 181, 186 n.2 (2008).

[43] See generally Unif. Prudent Inv. Act § 9 (Unif. L. Comm’n 1994).

[44] Id.

[45] The Woodward Sch. For Girls, Inc. v. City of Quincy, 469 Mass. 151, 163 (Mass. Sup. Jud. Ct. 2014).

[46] Id.

[47] See generally Matter of Est. of Younker, 174 Misc. 2d 296 (N.Y. Sur. Ct. 1997).

[48] Id. at 299.

[49] Unif. Prudent Inv. Act § 9(a) (Unif. L. Comm’n 1994).

[50] Id. § 2(a).

[51] Id.

[52] Id.

[53] See generally id. § 9.

[54] Id.

[55] Id.

[56] Id. § 9(a)(1).

[57] Josh Yager, UPIA §9 re Prudent Delegation of Investment Duties, Anodos L., https://trustee-help.com/PRUDENT-DELEGATION-OF-INVESTMENT-DUTIES/#:~:TEXT=THE%20PRUDENT%20INVESTOR%20ACT%20DIRECTS,THE%20TERMS%20OF%20THE%20DELEGATION [https://perma.cc/KGU7-DGL5] (last visited Feb. 7, 2026).

[58] Amy D. Roy & Robert A. Skinner, Meeting the AI Moment in Asset Management: An Agenda for Industry Lawyers, Ropes&Gray (Sep. 24, 2025), https://www.ropesgray.com/en/insights/alerts/2025/09/meeting-the-ai-moment-in-asset-management-an-agenda-for-industry-lawyers [https://perma.cc/DQM8-Y6F2].

[59] David Stapleton, Beyond the Checklist: Embedding Ethical AI Principles in Your Third-Party Compliance Assessments, ISACA (Sep. 11, 2025), https://www.google.com/search?client=safari&rls=en&q=Beyond+the+Checklist%3A+Embedding+Ethical+AI+Principles+in+Your+Third-Party+Compliance+Assessments&ie=UTF-8&oe=UTF-8 [https://perma.cc/3YXW-4TGF].

[60] See Unif. Prudent Inv. Act § 9(a)(2).

[61]See id.; see also Stephen Casper, Black-Box Access is Insufficient for Rigorous AI Audits, Arxiv, https://arxiv.org/abs/2401.14446 [https://perma.cc/2J83-8H2M] (last visited May 29, 2024). Recent audits of advanced AI systems have mostly treated them as “black-box[es],” where auditors can only test the system and see the results produced. Id.

[62] Unif. Prudent Inv. Act § 9(a)(2).

[63] Id.

[64] Uniform Prudent Investor Act, supra note 9.

[65] Forman L. Firm, For Trustees – A Word to the Wise, https://www.formanlawfirm.com/types-of-claims/for-trustees-a-word-to-the-wise/#:~:text=A%20Trustee’s%20Duty%20of%20Prudence,tax%20consequences%20for%20the%20trust [https://perma.cc/7AGT-HT9M] (last visited Feb. 7, 2026).

[66] Id.

[67] Unif. Prudent Inv. Act § 9(a)(3).

[68] Lifestyle Sustainability, Why Is Ongoing Monitoring of AI Systems Needed? (Mar. 18, 2025), https://lifestyle.sustainability-directory.com/question/why-is-ongoing-monitoring-of-ai-systems-needed/ [https://perma.cc/SS96-CRMZ].

[69] See generally Unif. Prudent Inv. Act § 9(a)(3).

[70] Lifestyle Sustainability, supra note 68.

[71] Unif. Prudent Inv. Act § 9 (a)(3).

[72] See generally id. § 9.

[73] See generally id.

[74] Id.

[75] See generally id.

By Abby Talbot

Introduction

Louisiana succession law has long valued testamentary freedom, though it has required testators to satisfy demanding formal rules to exercise it. A donation mortis causa is an act that takes effect at the death of the donor by which he disposes of the whole or a part of his property, and it may be made only in a form authorized by law.[1] Those formalities are not merely aspirational—they are mandatory, and failure to observe them renders a testament absolutely null.[2] There are only two available forms: the olographic testament and the notarial testament.[3]

Louisiana succession law has historically been defined by strict, and often unforgiving, formal requirements governing the validity of testaments.[4] Minor deviations in form, even when the testator’s intent was clear, frequently resulted in total nullity.[5] Testamentary formalism and strict compliance protects testators from fraud, undue influence, and mistake while providing courts with clear evidentiary markers of authenticity and intent.[6] The same formalism, however, often produced harsh results. Courts invalidated wills, not because the testator’s intent was unclear, but because the document failed to satisfy a technical requirement concerning the signature form, the wording of an attestation clause, or the precise manner of execution.[7] In practice, form frequently prevailed over substance.

The 1999 revisions to Louisiana succession law dramatically simplified this landscape by reducing the testamentary forms from five to two form options, while expressly preserving the validity of instruments executed under prior law.[8] Even so, despite consolidation into fewer forms, there were still many formal requirements for the two forms and minor deviations could result in total nullity.

Recently in 2025, the Louisiana Legislature fundamentally altered this landscape.[9] The legislature revised the Civil Code’s will formality provisions, through 2025 Louisiana Acts No. 30, effective August 1, 2025, to prioritize substance over technical compliance, while simultaneously declaring that the changes are applicable both prospectively and retroactively.[10]The legislature designed the revisions to reduce the number of wills invalidated for purely technical defects but preserve safeguards against fraud and uncertainty.[11] This reform reshapes how courts evaluate olographic and notarial testaments, simplifies execution requirements, and raises significant constitutional questions regarding retroactivity and vested rights.

I. Olographic Wills

An olographic will is a handwritten will created by the testator, without witnesses or notarization.[12] Under revised Civil Code article 1575, an olographic testament must still be entirely written, dated, and signed in the handwriting of the testator.[13]These core elements remain unchanged. The 2025 revision, however, substantially liberalizes how courts assess the sufficiency of both the date and the signature.

A. The Date

Prior law required that an olographic testament be dated with the day, month, and year, though extrinsic evidence could be used to clarify an ambiguous date.[14] Under the prior law, early Louisiana courts even invalidated wills with slash dates, finding the date to be uncertain.[15] For example, in 1962, a Louisiana court found that a slash date written on an olographic will, “10/3/50,” was uncertain and constituted a vice of form contrary to the requirements for olographic wills.[16]

 The revised article provides that a day, month, and year are no longer needed.[17] Louisiana Civil Code article 1575 now provides that a date is sufficient if it “resolves those controversies for which the date is relevant.”[18] Thus, under the revised article, whether a date is sufficient depends on the nature of the controversy presented. For example, if a testator leaves two wills dated only by month and year, the court must be able to determine their temporal priority to probate either instrument.[19] By contrast, where only a single will exists, a date reflecting only the month and year, may be sufficient.[20] Moreover, the revised article does not require a will to contain a month, day, or year at all. Instead, if the testator uses language that permits the court to ascertain the date through extrinsic evidence, the requirement may be satisfied.[21] For instance, a will stating that it was executed on the testator’s 30th wedding anniversary allows the precise date to be determined through extrinsic evidence. Nevertheless, it is clear that some form of a date remains necessary under the revised article to permit a court to determine when the testament was executed.[22]

This shift reflects a clear policy choice: the date matters only insofar as it resolves disputes concerning things such as capacity, revocation, or priority among multiple testaments. The focus is on if the date fufills its evidentiary function. If the date resolves those concerns, technical imperfections in the date no longer nullify the instrument.

B. The Signature

There was also a significant change to olographic wills concerning the signature. Prior law required the testator to sign at the end of the document, and any writing appearing after the signature risked exclusion at the court’s discretion.[23] The revised article eliminates any location requirement.[24] The signature may appear anywhere in the testament and is sufficient so long as it identifies the testator and evidences an intent to adopt the document as the testator’s will.[25]

Together, these provisions substantially reduce the risk that a clearly handwritten and intentional testament will fail on purely technical grounds. By design, olographic wills dispense with the requirements of a notary and witnesses, allowing individuals to express testamentary intent through a wholly handwritten instrument.[26] Thus, it is consistent with the purpose of olographic wills to relax technical requirements that might defeat an otherwise valid expression of intent.

II. Notarial Wills and Probate

Revised Louisiana Civil Code article 1576 governs notarial testaments. Unlike an olographic will, which is entirely handwritten by the testator, a notarial will is a formal, witnessed testament executed before a notary.[27] A notarial testament must be written, dated, executed in the presence of a notary and two witnesses, and signed by the testator, the notary, and both witnesses.[28] While this structure remains the same, the revision eliminates several formal requirements for a valid notarial will. Formal validity alone, however, does not render a will self-proving, since probate of a will requires satisfaction of additional, distinct requirements.[29]

A. Dates and Signatures

The revised law provides that the same rules governing the location and sufficiency of dates and signatures for olographic wills apply to notarial wills.[30] As a result, the testator’s signature need not appear at the end of the dispositive provisions, and the date may appear anywhere in the instrument so long as it resolves relevant controversies.[31] This change marks a sharp departure from prior law, under which failure to sign each page of the testament or to sign in the proper location resulted in total nullity.[32]

B. Elimination of Declaration and Attestation Clause

Under prior law, there was a requirement that the testator shall declare or signify to the notary and two witnesses that this instrument is his testament.[33] This requirement no longer exists for the validity of a notarial testament. While testamentary intent is still needed, this separate verbal or physical declaration is no longer required.[34]

Further, the most significant change was the Louisiana Legislature eliminating the need for an attestation clause.[35]Under prior article 1576, the Civil Code required the notary and witnesses to sign the declaration articulated in the article, or a substantially similar declaration.[36] The attestation clause stated:

In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___ day of ___, ___.[37]

The Louisiana Legislature eliminated this requirement for validity, citing Succession of Porche, where the Louisiana Supreme Court found that the attestation clause is of only evidentiary value, rather than substantive value.[38] The requirement that the attestation clause use this language, or substantially similar language, led courts to invalidate wills when the clause did not use the precise wording.[39] Treating the attestation clause as a prerequisite to self-proving status, rather than validity, avoids unnecessary litigation and invalidation of otherwise effective wills.

C. Elimination of Special Forms

The 2025 revision also abolished a series of special-form testaments previously required for certain testators, including those unable to sign their names, unable to read, those executing wills in braille, and those who are deaf or blind.[40] All testators now execute the same form of notarial will. This change reflects a commitment to avoiding the procedural traps that previously accompanied specialized forms.

D. Validity Versus Probate

Importantly, the revision reclassified many of the formerly rigid requirements, such as signing each page and including a precise attestation clause, as self-proving requirements for probate rather than validity requirements.[41] A testament has no effect until it is probated.[42] Thus, even though compliance with these former formal validity requirements is no longer essential to a testament’s validity, such compliance may ease the probate process and ensure the testament takes effect.

Olographic testaments are never self-proving.[43] Proponents must prove olographic testaments under Code of Civil Procedure article 2883 through the testimony of two credible witnesses attesting that the testament was entirely written, dated, and signed in the testator’s handwriting.[44] This testimony may be submitted by affidavit unless the court requires live testimony.[45]

Under the old law, notarial testaments were always self-proving, which is part of the reason why the form requirements were so stringent. After the revisions, a notarial will may now be formally valid without the will being self-proving.[46] A notarial will is only self-proving under Louisiana Code of Civil Procedure article 2891 if it complies with Code of Civil Procedure article 2887(A).[47] Code of Civil Procedure article 2887 was added to the Code in the 2025 revisions and states that for a notarial will to be self-proving, the testator must sign each page at execution, and the testament must include a declaration.[48] That declaration must be either in the instrument itself, or in an attached affidavit, stating that the testator declared or signified that the document was his testament and signed each page in the presence of the notary and witnesses.[49] Failure to meet these requirements no longer renders the will invalid; it merely affects whether additional proof is required at probate.[50] If a notarial will is not self-proving, the proponent may prove it by the notary and witnesses, by any one of them if the others cannot be found, or by any two credible witnesses if none of those individuals are available.[51]

III. Retroactivity and Vested Rights: An Open Question

The most controversial aspect of the 2025 reform is its express retroactivity provision. 2025 Louisiana Acts No. 30 declares that the new law applies both prospectively and retroactively to all existing and pending claims, except that it may not revive prescribed claims or disturb final judgments.[52]

When the legislature expressly mandates retroactive application, courts generally comply unless doing so violates constitutional protections, most notably the Due Process Clauses of the Louisiana and United States Constitutions.[53]Historically, Louisiana courts have been reluctant to apply changes in law retroactively when doing so would divest individuals of their vested rights.[54] Heirs acquire their vested rights at the moment of death.[55] Therefore, a will being probated that would have been held invalid under prior law may be divesting these intestate heirs of their vested right in the succession.

Recent jurisprudence, however, complicates this analysis. In Bienvenu v. Defendant 1, the Louisiana Supreme Court overruled the Burmaster decision and suggested that divestiture of a vested right is not, by itself, dispositive.[56] Instead, courts must ask whether the retroactive deprivation is justified by a legitimate governmental interest.[57] This inquiry is typically evaluated under rational basis review.[58]

Under this framework, the legislature’s interest in honoring testamentary intent, reducing unnecessary nullities, and promoting uniformity in succession law may well satisfy rational basis scrutiny. The Louisiana Supreme Court may ultimately uphold retroactive application of the revisions, even where it alters the distribution that would have occurred under intestacy. If the Louisiana Supreme Court finds this retroactive application is constitutional, the revised law will apply to wills executed prior to and after August 1, 2025. If the Court finds retroactivity is unconstitutional, however, then Louisiana courts will apply the prior law to pre-August 2025 wills and the revised law only to wills executed after August 1, 2025. In either scenario, this unresolved controversy will have no effect on closed successions, and it will not revive any prescribed claims.[59]

Conclusion

Louisiana’s 2025 reform of will formality requirements marks a decisive shift away from rigid formalism and toward effectuating testamentary intent. By relaxing signature and date requirements, eliminating special forms, and distinguishing between validity and probate, the Louisiana Legislature has significantly reduced the risk that minor technical errors will defeat a testator’s wishes. Additionally, the Act’s express retroactivity provision raises constitutional questions that will shape succession litigation in the future. Whether courts ultimately permit retroactive validation of wills that previously failed under old law remains uncertain. What is clear, however, is that Louisiana succession law has entered a new era—one in which substance increasingly prevails over form.

[1] La. Civ. Code art. 1469 (2009); id. 1570 (1999).

[2] La. Civ. Code art. 1573 (1999).

[3] Id. art. 1574 (1999).

[4] Ronald J. Scalise, Jr., Will Formalities in Louisiana: Yesterday, Today, and Tomorrow, 80 La. L. Rev. 1331, 1344 (2020).

[5] Succession of Mayer, 144 So. 2d 896 (La. Ct. App. 1962); Succession of Lasseigne, 181 So. 879 (La. Ct. App. 1938); Succession of Raiford, 404 So. 2d 251 (La. 1981); Succession of Toney, 226 So. 3d 397, 399 (La. 2017).

[6] Scalise, supra note 4.

[7] See Toney, 226 So. 3d at 399.

[8] See La. Rev. Stat. § 9:2440 (1999).

[9] S. 49, 2025 Leg., Res. Sess. (La. 2025).

[10] Id.

[11] See La. Civ. Code Ann. art. 1576 cmt. (c) (2025).

[12] Id. art. 1575 (2025).

[13] Id.

[14] Id. art. 1575 cmt. (d) (2025).

[15] Id.

[16] Succession of Mayer, 144 So. 2d 896 (La. Ct. App. 1962).

[17] See La. Civ. Code art. 1575 (2025).

[18] Id.

[19] See id. art. 1575 cmt. (d) (2025).

[20] See id.

[21] Id. art. 1575 (2025).

[22] See id.

[23] Id. (2001).

[24] See id. (2025).

[25] Id.

[26] See id.

[27] Id. art. 1576 (2025).

[28] Id.

[29]See La. Code Civ. Proc. art. 2887 (2025).

[30] La. Civ. Code art. 1576 (2025).

[31] Id.

[32] See id. (1999).

[33] Id.

[34] La. Civ. Code Ann. art. 1576 cmt. (f) (2025).

[35] Id. art. 1576 cmt. (b).

[36] Id. art. 1576 (1999).

[37] Id.

[38] See id. art. 1575 cmt. (b) (2025); Succession of Porche, 288 So. 2d 27, 29 (La. 1973).

[39] See Succession of Toney, 226 So. 3d 397, 399 (La. 2017).

[40] La. Civ. Code art. 1578 (1997); id. art. 1579 (1997); id.  art. 1580 (1997); id. art. 1580.1 (1999).

[41] See La. Code Civ. Proc. art. 2887 (2025).

[42] La. Civ. Code art. 1605 (1999).

[43] See La. Code Civ. Proc. art. 2883 (1999).

[44] Id.

[45] Id.

[46] La. Civ. Code Ann. art. 1576 cmt. (a) (2025).

[47] La. Code Civ. Proc. art. 2891 (2025).

[48] Id. art. 2887 (2025).

[49] Id.

[50] See id.

[51] Id.

[52] S. 49, 2025 Leg., Res. Sess. (La. 2025).

[53] See St. Paul Fire & Marine Ins. Co. v. Smith, 609 So. 2d 809, 816 (La. 1992) (“[T]he legislature is free, within constitutional confines, to give its enactments retrospective effect . . ..”).

[54] See Burmaster v. Plaquemines Par. Gov’t, 982 So. 2d 795, 810 (La. 2008).

[55] La. Civ. Code art. 935 (1999).

[56] Bienvenu v. Defendant 1, 386 So. 3d 280, 290 (La. 2024).

[57] Id.

[58] See id.

[59] S. 49, 2025 Leg., Res. Sess. (La. 2025).