Estate Planning, Like Crawfish, Is An Essential For Louisiana Families with Children


New babies and new marriages rank at the top of the list of the most celebrated events in a person's life.  During this time, new parents or new couples are overflowing with hopes and dreams of the future. The last thing on their mind is "estate planning", i.e. planning for their death.  Most couples during this time believe having a  will prepared is something that they can deal with later after they have accumulated more assets.  But unfortunately, time waits for no one, and the unexpected can happen at any time.

The intent of this article is certainly not to rain on anyone's parade.  However, after these two major life events, the failure to have a plan in case the unexpected happens may result in an extremely complicated, expensive and emotional situation for your family and your children.  If the marriage is not your first marriage and you or your spouse have children separately, the situation can become a nightmare for those left behind.  In addition to the question of who will care for your children if you or your spouse dies unexpectedly, the issue of  distribution of assets, such as the house that you and your spouse have turned into home, may also become an issue between the surviving spouse, the children, and/or ex-spouses and the deceased family members. Lastly, a divorced spouse, not remarried but could result in your ex-spouse having control over all your assets should you die, leaving behind minor children.  A proper estate plan can cover these items, and much more.

Louisiana Law Pertaining to Community Property and Inheritance without a Will

Before diving into he benefits of having an estate plan, a discussion of Louisiana law may be of benefit.  In Louisiana, after getting married, a couple establishes what is referred to as a community property regime. All assets and debts accumulated during the marriage are community property, Property
 that one spouse owned alone before the marriage, property that is acquired by gift or inheritance during the marriage, damages recovered by a spouse as a result of personal injuries during the marriage, or property covered by a prenuptial agreement is referred to as Separate Property in Louisiana.   If a spouse were to die without a will, all Separate Property is split between that spouse's children.  The living spouse is not entitled to those funds.  The Community Property is split.  The surviving spouse gets his or her respective half of the Community Property and the children own the other half.  However, the children's half is subject to what is referred to as a matrimonial usufruct, which generally means that the surviving spouse can use and manage the assets  until she either dies or gets remarried. 

Regarding minor children, under Louisiana law, the surviving spouse is the children's guardian (or tutor, in Louisiana legal terminology).  As a child's tutor, the surviving spouse not only continues to care for the child,  he or she will also be the financial guardian of the child's inheritance, which would include not only the deceased spouse's 1/2 of the community property (subject to the usufruct), but all of the deceased spouse's community property until that child becomes an adult.

Possible Situations That Could Occur If No Estate Plan Is In Place

With that general background, you may be wondering, why do I need a will?  It sounds like Louisiana law will cover everything.  Well, first, the above description was a mere snippet of the law.  There are many different scenarios  that could change what law is applied and how.  Take a look at the photo of lady justice.  Notice she is wearing a blindfold.  That blind fold makes it impossible for lady justice to ascertain what your wishes and intents.  The following situations illustrate this point.

Situation 1.  Simultaneous Deaths of Both Parent with Minor Children

I learned this lesson early in my legal career clerking for a local attorney while in law school. He was enrolled in a case involving a vehicular accident that involved a driver of a company vehicle crossing lanes and running head-on into a family of four, killing both parents and leaving two minor children with injurie. One child had injuries that could prove to be life long.  The company and the insured were ready to settle.  However, the parents did not have wills, and so in fighting between the parent's family occurred, and a judge, with only a few hearings lasting less than a few hours total, was left to decide who would care for the children as well as guard the large settlement that was waiting.

If the parents would have left a will, they could have appointed a tutor that they trusted to be the guardian of their children.  As part of the will, they could have established a trust, which could have set forth, among other things, when and how their children, would receive their inheritance. Under Louisiana law, they could be put in possession  of  what was not used to care for them when they turned 18. Long, costly court proceedings and friction between the two families could possibly have been avoided.

Another scenario could occur where only one spouse dies but the other is left in a coma or with serious impairments that make he or she incapable of taking care of his or her own interest, much less their minor children.  In such a case, part of the estate plan could include a power of attorney (or in Louisiana terms, a mandate) that would appoint someone to handle matters while you are alive.

Regardless of the amount of assets, if the unexpected were to happen, your most valuable asset, your children, could be left in the hands of the state rather than someone you both trust to raise them. 

Situation 2.  Death of Your Spouse and the Family Home

Another situation that could occur is when one spouse dies what happens to the family home?  Very few married people purchase a house and make it a home for their family with thoughts that the other would somehow be evicted if something were to happen to them. Below are a few situations that realistically could occur that may not at all be what you had in mind would occur if a spouse died unexpectedly. 

1. Spouse Dies Without a Will Leaving Behind Minor Children of the Marriage.

In a situation where the unexpected occurs and your spouse dies, leaving behind minor children then issues may arise.  First, is the home, Community Property or Separate Property of the Deceased?  As discussed above, if it is Separate Property, the heirs of one hundred percent of the property would be the minor children. If it is Community Property, the surviving spouse will be placed in ownership of half and the children will be placed in ownership of the other half, subject to the surviving spouse's usufruct (or management of the property) until he or she dies or gets remarried.  Suppose your spouse dies unexpectedly and you decide to remarry while the children are minors.  Now, suppose they do not accept the your new spouse or any other situation where animosity develops between the children and the surviving parent, when the minor's turn 18, the surviving spouse can actually be displaced from his or her home.  Not only that, but if you do not have an estate plan in place and depending upon the size of your estate, the children can have a lot of money at their disposal when they turn 18. If neither of these are your intent, estate planning can prevent and manage their inheritance through a will and trust.

2. Single Divorced Parent Dies Without a Will Leaving Behind Minor Children from Prior Marriage.

In this situation, we will presuppose there is no community property.  If you are divorced with minor children and something were to happen to you, then your minor children will be the heirs of one hundred percent of your estate.  The surviving parent more than likely will become the tutor of your children, overseeing not only their care, but their finances, including your estate until the children are adults.  Not many people would want their ex-spouse to have control over their estate.  Proper estate planning could prevent this situation.

3. Blended Family Formed With Step-Children. 

This situation is perhaps the most complex.  Again, the first thing to consider would be "is the property separate or community"? For example, consider the situation where you remarry and move into your spouse's home and your spouse dies without a will leaving behind minor children from a prior marriage.  As with single parent situation, his children will not only own will inherit 100% of his estate, the ex-spouse may be in control of it.  Moreover, if the spouse died leaving behind adult children from a prior marriage, they would immediately be the heirs of all of his separate property, including the house you live.  Also consider the situation where you have a successful blended family and your spouse loves your children and has raised them like his own.  If your spouse should die without a will, they will not be privy to his estate.  If your spouse had no children and the family home was separate property, then his siblings and parents would inherit his estate.  

Here's Why Estate Planning is a Is A Good Idea

If you have minor children regardless of your marital status or you have remarried forming a blended family, putting together a will, a trust and other important legal documents may not be something you want to put off.  We are not guaranteed more time, and not planning now could have serious consequences for your spouse and children later if you pass away or become incapacitated unexpectedly.  Estate planning documents could:

  • provide for care of minor children or child or spouse with special needs
  • allow your spouse to stay in the family home for life and/or have use of  community and separate assets for life
  • allocate particular assets to certain individuals or charities
  • decide who will manage property or assets they inherit 
  • protect your spouse, your children and step-children by making things very clear
  • protect a family business
  • disinherit someone who would by law could inherit from you
  • appoint a person you trust to oversee your wishes after you die.
One final comment,  all of the information in this article may seem overwhelming.  If  you would like to discuss your particular situation or begin the estate planning process, please contact us or other experience estate planning attorneys you trust.  Avoid forms, especially in Louisiana, where the form may leave out very important items that are required by our unique laws, resulting in your last wishes begin subject to extensive and expensive litigation over important matters as who will care for your children, who will manage their finances, or who will live in the house you and your spouse made a home.

Bonaventure Law Firm, LLC


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