When someone passes away, it is important to determine whether they left a will, so the deceased person’s (this person is referred to as the decedent) last wishes may be carried out. We say that someone who dies without a will dies intestate. The word testament as in “this is my final will and testament,” has the same root; someone who dies testate is someone who does leave a valid will.
The law determines how a person’s property will be distributed if they die without leaving a will, or intestate. We call this the law of intestate successions, and it is found in the Louisiana Civil Code starting at Article 890. The distribution called for by law may not be what you’d envisioned – and in a scenario where someone dies intestate without a spouse or close relatives, everything could go to the state, like one recent headline-grabbing estate in New York worth $40 million. In some cases, a person may leave a “will” that is not in the correct form, and although their wishes are spelled out in that document, the document will have no legal effect, and the property will be distributed in the way the law dictates. The law of intestacy may also come into play when someone dies leaving a will that does not dispose of all of the property they own. This is why it is important to have an attorney help you with your estate planning.
For example, if you are married and you die without a will, you might expect all of your property to pass to your surviving spouse. However, depending on what kind of property you own and whether you have children, the distribution could be much different than you expect. The answers to the following questions will tell you how this distribution might look in a typical situation.
Part I: Community Property
1. Was the deceased person married at the time of death?
Louisiana is one of the eight states that follows a community property regime – so the distribution of assets when you die without a will depends on whether you are married at the time of your death. Louisiana recognizes a presumption that any property acquired during the marriage is community property. This community property belongs equally to the husband and the wife, regardless of who earned the money to purchase it or actually purchased it, or in whose name the property is titled. Of course, there are exceptions to this presumption (for example, if one of the spouses inherited the property, it remains separate), and the presumption can be overcome if the purchase money can be traced back to one spouse’s separate property. Also, some couples choose to opt out of the community property regime, by executing an agreement keeping all or some of their property separate. However, generally speaking, if a couple has been married a long time, most of their property will be community property.
Half of the community property belongs to the surviving spouse of their own right. The distribution of the other half will depend on whether the deceased person left any children or grandchildren.
2. Does the deceased person have children or grandchildren?
If the decedent owned community property, it will be distributed in the following way:
Half of the community property goes to the surviving spouse outright, as this half is rightfully the surviving spouse’s property. If the decedent left descendants (i.e. children or grandchildren), the other half of the community property passes to them in naked ownership, and to the surviving spouse in usufruct. If there are no descendants, all the community property goes to the surviving spouse.
Because community property is created by marriage – the question is whether someone was married at the time of their death. The community property regime still exists even if a couple is taking a break or decides to separate, because the marriage still exists. Thus, if a married couple breaks up but is not yet divorced, and one of them dies without a will, their community property would go to the surviving spouse, either in usufruct or outright, even though that might not be in the deceased spouse’s wishes. While estate planning is always important, an especially crucial time to evaluate your own plan is when big life changes happen like marriage, divorce, or the birth of a child. Having a will in place ensures that your wishes will be carried out after you are gone.
3. Does the decedent own any separate property?
Most people who die leave some separate property. Someone who is not married has no community property; it is all separate. Married decedents also may leave separate property, whether it’s property that they brought into the marriage and did not commingle with community property, property inherited by or donated to the individual, or property that remained separate by agreement such as a prenuptial agreement.
Separate property follows a different order of distribution than community property. We will address the distribution of separate property in another blog post soon. Check back next month for What Happens If I Die Without a Will in Louisiana, Part II: Separate Property.