1.
11.
borbr1
Surviving Spouse
6
More Remote Ascendants
6
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6
a. One Ascendant Nearer in Degree
b. Surviving Ascendants in the Same Degree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
c. No Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. More Remote Collaterals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7
6. No Heirs
7
F. INHERITANCE OF COMMUNITY PROPERTY BY INTESTACY
1 . Surviving Spouse's Half o f Community Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Decedent Spouse's Half of Community Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. If Children or Other Descendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1) If Child Renounces Parent's Half of Community . . . . . . . . . . . . . . . . . . . . . . . 7
b. If No Children or Other Descendants
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7
c. Community Property of a Putative Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7
1) Decedent Spouse in Good Faith
2) Decedent Spouse in Bad Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3 . The Article 890 Usufruct o f the Surviving Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
a. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1) Children not of the Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2) Necessity of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
b. Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
c. Contrast a Surviving Spouse's Usufruct by Will . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
G. INHERITANCE RIGHTS ADOPTED CHILDREN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8
2. From Whom Can the Adopted Person Inherit?
8
3. Inheritance Rights of Biological Parents Not Reciprocal
H. INHERITANCE RIGHTS OF CHILDREN BORN OUTSIDE OF MARRIAGE
(FORMERLY, ILLEGITIMATE CHILDREN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1 . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. Formal Acknowledgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
a. Reciprocal Inheritance Rights between Children and Father . . . . . . . . . . . . . . . . 9
Paternity
Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.
a. Civil Proceeding Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
b. Time Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1 ) One-Year Time Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2) Former Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. Avowal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
a. Civil Proceeding Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
b . Time Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
1 ) If the Child Is Presumed the Child of another Man . . . . . . . . . . . . . . . . . . . . 10
2) If the Child Is not Presumed the Child of another Man . . . . . . . . . . . . . . . . 1 0
5. Other Possibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
6 . Further Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
I . REPRESENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
1 . Effect on Degree Count . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
2. Who May Be Represented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
3. Where Representation Takes Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
3.
4.
111.
1v.
borbr1
Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6
Effect on Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1) Can Prohibit Renunciation by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6
2) Oblique Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6
4 . Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
a. Formal Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
b. Informal Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1) Act Without Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2) Act of Ownership Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3) Acceptance Manifested by an Act of the Heir . . . . . . . . . . . . . . . . . . . . . . . . . 17
c. When an Act of Renunciation is Really an Acceptance . . . . . . . . . . . . . . . . . . . . . 17
d. Effect of Acceptance--S uccessor's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5. Renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
a. Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1) Intestate Successions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2) Testate Successions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
b. Renunciation and Other Inheritance Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
c. Renouncing Relative Can Still Represent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
d. Capacity to Renounce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
e. Seizin and Renunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
f. Attempted Renunciation-Someone Outside Order of Accretion . . . . . . . . . . . . 18
N. PAYMENT OF "ESTATE DEBTS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. General Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
a. Debts of the Decedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
b. Administration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2. Liability of Successors to Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
a. Liability of Universal Successors to Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
b. Successors as Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
c. New Creditor-Order of How Claim is Satisfied . . . . . . . . . . . . . . . . . . . . . . . . . 19
d. Order of Payment-Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1) Secured Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2) Unsecured Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3. Apportionment of Debts among Successors Themselves . . . . . . . . . . . . . . . . . . . . . . . 19
a. Shifting Responsibility among Successors by Testator or Successors'
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
b. Charges on Identifiable Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
c. Debts of the Decedent-How Charged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
d. Administration Expenses-How Charged . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
e. Allocation of Receipts and Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1) Succession Representative's Compensation and Professional Services Fees 20
2) Tax Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
f. Certain Classes' Rights and Obligations Protected . . . . . . . . . . . . . . . . . . . . . . . . 20
f.
g.
II. DONATIONS-GENERALLY . . . . . . . . . . . . . . . .
A. OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Two Kinds of Donations in Louisiana . . .
a. Donation Inter Vivos . . . . . . . . . . . . . .
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20
20
21
21
v.
21
b. Donation Mortis Causa
Three Requirements for Validity of Donation
21
a. C apacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
. . . . . . . . . . . . . . . . . . . . . . . . . . 21
b. Formalities
21
1) Donations Mortis Causa
21
2) Donations Inter Vivos
21
c. Substantive Limits
B. CAPACITY
21
1.
Capacity of the Donor to Make Donations
22
a. Timing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
b. Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
22
c. Mental Condition of the Donor
1) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
a) Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
22
b) C apacity of Interdicts to Make Donations
(1) Full Interdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(2) Limited Interdiction
22
(3) Former Law-"Mentally Infirm" . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2) Vices of Capacity-Fraud, Duress and Undue Influence . . . . . . . . . . . . . . . 23
a) Effect of Fraud or Duress
23
b) Effect of Undue Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
c) Severability of Donation's Provisions vis-a-vis Extent of Fraud,
Duress or Undue Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
d) Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
e) Fiduciary Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3) Former Law-Test Being of "Sound Mind" and Use of Factor Now . . . . . . 24
d. Conflict of Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1) C apable under Laws of Both States-Vices of C apacity . . . . . . . . . . . . . . . . 24
2) Capable under Laws of One of the States-Vices of Capacity . . . . . . . . . . . 24
2. Capacity of the Donee to Receive Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
a. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1) Unborn Children "In Utero" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
a) Posthumously Conceived Children
24
2) Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
25
b. Donations Subject to a Suspensive Condition
c. Acceptance on Behalf of Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. REPROBATED DISPOSITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1. Prohibited Substitutions
25
a. Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
b. Two Parts for Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1) Charge to Preserve Property and Deliver Before Death not Prohibited . . . 25
2) Substitution de eo quod supererit not Prohibited
25
26
3) Effect of Prohibited Gift
c. Reservation of Usufruct Permissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2. Vulgar Substitutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
a. Period of Survivorship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
b. Temporal Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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2.
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vi.
v111.
5) Intestacy Ultimately
37
Extinction vs. Lapse
37
1) Legatee's Entitlement as a Result of Extinction . . . . . . . . . . . . . . . . . . . . . . . 38
38
2) Object of Legacy "Transformed"
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38
3) Condemned or Expropriated Property
IN
DISBURSING
BEQUESTS
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38
PRIORITIES
G.
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38
1. Testament Governs
38
2. Priority of Particular Legacies
38
3. Succession not Sufficient to Discharge all Bequests-Order
a. "Specific Things" First . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
38
b. Groups and Collections Next
38
c. Distribution of Cash Legacies
4. Rights of Legatees to Fruits and Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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39
a. Interest on a Money Legacy
H. REVOCATION OR MODIFICATION OF TESTAMENTS
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39
39
1. Generally
Form
and
Extent
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39
a.
39
b. No Renunciation
2. Revocation of Entire Testament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
39
a. Revocation Clause in a New Will
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39
b. Destroyed Will
1) Probating a Copy of a Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
a) Proponents' Burden to Rebut Presumption
40
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40
2) Destruction-Multiple Originals
3) Lost Original Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
c. Revocation by Authentic Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
d. Revocation by Signed Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
e. Result . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3. Revocation of a Legacy or Testamentary Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
a. Tacit Revocation of a Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
1) Subsequent Inconsistent Mortis Causa Disposition . . . . . . . . . . . . . . . . . . . . 41
2) Sale or Donation of Property Bequeathed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
a) Reacquisition of the Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
41
b) Jurisprudential Exception-Cash Bequests
b. Revocation and Form of Will Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
1) Olographic Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1
2) Notarial Testaments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
41
c. Other Modifications of a Legacy
Destruction
or
Revocation-Multiple
Wills
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42
4.
a. No "Dependent Relative Revocation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
b. Effect of Revoking the Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5. Revocation vis-a-vis Additional, Subsequent Children . . . . . . . . . . . . . . . . . . . . . . . . 42
42
a. Generally
6. Grounds for Revocation of Donations Inter Vivos-Applicability to Revocation of
Testamentary Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
a. Forced Heir Exception-Revocation due to Ingratitude of Donee . . . . . . . . . . . . 42
I. INTERPRETATION OF LEGACIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
c.
1.
2.
3.
1x.
x.
barbr1
xi.
. 54
4) Remunerative Donations
5) Onerous Donations
54
6) Donations Given More than Three Years
.
. . 54
7) Inter Vivos Donations to Spouse of "Previous" Marriage . . . . . . . . . . . . . . . 54
4. Order of Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
.
55
a. Mortis Causa Gifts Reduced First
1) Designating Order of Reduction
.
55
2) If No Designation
55
b. Once Probate Exhausted, then Inter Vivos Donations
55
1) Order-Most Recent Inter Vivos Donations First
..
55
a) Exception of Order of Reduction-the Insolvent Donee . . . . . . . . . . . . 55
. .
55
5. Donee's Options-Return or Take Less
55
a. Property no Longer Owned by Donee
b. If Property Encumbered
.
.
.
. 56
c. Destroyed or Diminished Property
.
.
. 56
d. Fruits and Products
56
1) "Demand" in this Context
.
56
.
56
e. Improvements to the Donated Property
D. HISTORICAL TRACKING OF THE LAW OF FORCED HEIRSHIP: GENERALLY 56
1 . Forced Heirship before 1 982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
a. Forced Portion
.
.
56
.
56
b. Who Were Forced Heirs
1) Parents as Forced Heirs
.
56
2. Forced Heirship from 1 982 to July 1, 1 990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
a. Forced Portion
.
57
57
b. Who Were Forced Heirs
3. Forced Heirship from July 1, 1990 to Succession ofLauga (1993) . . . . . . . . . . . . . . . 57
4. Forced Heirship from January 1, 1 996 to June 18, 1 996 . . . . . . . . . . . . . . . . . . . . . . . 57
57
a. Forced Portion
b. Who Were Forced Heirs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
1) "Twenty-three Years of Age or Younger" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
2) Any Age Because of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
3) Grandchildren
58
5. Forced Heirship since June 18, 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
.
V. COLLATION
A. DEFINITION AND GENERAL PRINCIPLES
1. Generally
.
a. Always Presumed
b. Distinguishing between "Real" and "Fictitious" Collation
2. Waiver of Collation
.
a. Unequivocal Language
b. Where Stipulation of Waiver Can Be Made
1) In Act Itself
2) In A Subsequent Authentic Act
3) Dispensation Made by a Will
a) Query
.
.
.
.
.
58
58
58
58
58
58
58
59
59
59
59
59
xn.
barbrr
b) Succession ofFakier
59
B. APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
1. Claimant's Required Status-Who May Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
a. Grandchildren Inheriting by Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
59
b. Not a Forced Heir-Cannot Demand Collation
2. To Whom Is It Due? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
60
3. What May Be Demanded
.
60
a. Expenditures Subject to Collation
.
60
b. Expenditures Exempted from Collation
1) Manual Gifts
.
60
2) Gifts for Use During Donor's Life
60
60
3) School/Necessitous Position Expenses
.
60
4) Gifts more than Three Years before Donor's Death
5) Marriage Gifts
.
.
60
. 60
6) Gifts Received by Those Not Required to Collate
4. From Whom Can Collation Be Demanded? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
a. The Person of Whom Collation Is Required Must Be "In Quality" of an Heir . 6 1
1 ) I f Heir Holding Property Subject to Collation Renounces
. 61
.
61
b. When Grandchildren Are Not Required to Collate
61
C. PROCEDURE-HOW COLLATIONS ARE MADE
61
1. General Definitions
. 61
a. In Kind
b. Taking Less
61
62
2 . Immovables
.
. 62
a. Option-Take Less or Return in Kind
Reimbursements
to
the
Donee
of
an
Immovable
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
. . 62
b.
1) Necessary Expenses
.
.
62
2) Useful Expenses
.
62
.
62
3) Expenses for Mere Pleasure
. 62
c. Donee's Liability for Damage to the Immovable
62
1) If Do nee Collates in Kind
2) If Do nee Elects to Take Less from Succession .
.
62
3) Partial Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
d. Immovable Property Burdened with Real Rights . . . . . . . . . . . . . . . . . . . . . . . . . 63
63
3. Movables
a. Cannot Collate in Kind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
b. Collation of Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
.
63
D. GENERAL OBSERVATIONS
1 . Keeping Donation, Renouncing Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
2. No Collation After a Judgment of Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
3. Community vs. Separate Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
.
. 63
E. ACTION TO DECLARE SIMULATION
1. Simulation-Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
63
a. True Intent in a Counter Letter
.
63
b. Kinds of Simulation
1) Absolute
63
2) Relative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
.
2.
64
64
64
64
64
64
. . . . . . . . 64
64
64
64
64
64
65
. . . . . . . . . . 65
65
65
65
65
65
65
F.
xm .
66
66
. . . . . . . . 66
66
66
66
. . . . . . 66
66
66
66
66
. 67
67
. . . . . . . 67
. 67
65
65
65
65
65
65
66
66
67
xiv.
ba
67
A. DEFINITION
B. CLASSIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
.
67
1 . Types of Donations Inter Vivos
a. Gratuitous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
b. Onerous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
c. Remunerative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
68
2. Relevance of Classification - Two-Thirds Rule, Form
a. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
b. "Onerous" Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
c. "Remunerative" Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
GENERAL
REQUIREMENTS
68
C.
1. Donative Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
2. Irrevocability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
3. Present Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
4. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
a. Donor's Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
b. Payment of Future or Unexpressed Debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
c. Right of Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
1 ) Permissible Stipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
2) Effect of Return and Exception - When the Donor Gets the Property
Back . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
d. Not Applicable to Marriage Donations
.
69
D. FORM RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
1 . Required Contents o f the Act o f Donation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
2. Confirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
3. Form vis-a-vis Classifications of Property Donated . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
a. Immovables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
b. Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
.
70
1 ) Corporeal Movables - the Manual Gift
2 ) Incorporeal Movables
.
70
a) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
i) Negotiable and Non-Negotiable Instruments . . . . . . . . . . . . . . . . . . . 70
ii) Stock Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
iii) Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
iv) Passbooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
v) Bearer Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
vi) Certificates of Deposit
.
71
vii) U.S. Savings Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
b) Investment Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
E. ACCEPTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
72
1. When - Date of Acceptance, Effectiveness
2. How - Methods of Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
a. In Act of Donation or Subsequently . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
b. Movable - Donee in Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
72
c. Immovable - Subsequent Alienation or Encumbrance by Donee
d. With AU Existing Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
3. By Whom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
.
xv.
xvi.
barbrr
c.
78
borbrr
Example: Potential heir dies before the decedent, the potential heir's children may represent him
and inherit.
or
Example: Heir dies after the decedent but before exercising the right to accept or renounce.
C . CAPACITY TO INHERIT
To inherit, one need only be in existence at the time of the decedent's death. This includes children
who have been conceived and are later born alive. Age and mental capacity are irrelevant as to
capacity to inherit. La. Civ. Code arts. 939-940. There is also a special exception for a
posthumously-conceived child when the husband dies, and the surviving widow conceives by
artificial insemination of his frozen sperm. La. Rev. Stat. 9:39 1 . 1 .
1 . Conflict o f Laws Rule
The capacity of an heir or legatee is determined under the law of the state in which the decedent
was domiciled at the time of his death. La. Civ. Code art. 3 530, ifl .
D . DETERMINING WHO INHERITS BY INTESTACY-GENERALLY
1 . Classes of Heirs
Heirs are divided into five classes and, as to separate property, they inherit in the
following order of priority:
a. Descendants;
b. Parents and siblings (and the descendants of siblings by representation);
Note: When the decedent leaves both siblings and a parent or parents, the surviving parent
or parents receive a usufruct subject to the siblings' (or their descendants) naked ownership.
Ref I.E.2.b., infra.
c. Surviving spouse (not judicially separated);
d. More remote ascendants;
e. More remote collaterals.
2. Most Favored Class Takes to the Exclusion of the Other Class(es)
The relatives in the most favored class take to the exclusion of the other class(es). The nearest
relation in a class, determined by counting degrees (see I.D.3 ., infra) takes to the exclusion of
more distant relatives in that class. In short, the nearest relative in the highest class inherits by
intestacy. La. Civ. Code art. 899.
3 . Counting Degrees (La. Civ. Code arts. 900-901)
a. A Degree Is a Generation
A degree is a generation.
barbrr
Example: Three children of decedent share equally and exclude all others.
c. Direct Line
Direct line (ascendants and descendants) - There are as many degrees as there are
generations.
d. Collateral Line
Collateral line (heirs who do not directly descend from each other) - Count up to the nearest
common ancestor, then count to the decedent. The lowest number of steps is the closest
relative.
F
X
B(2)
N(3)
or
the child. La. Civ. Code art. 1 98. The child i s protected and can inherit from the father
in any event, but the father cannot inherit from the child without a suit to avow.
b. Parents' Usufruct and Siblings' Naked Ownership
Parents have j oint and successive usufruct, and the siblings have naked ownership. If one
parent dies, the entire usufruct accrues to the survivor, and the siblings or their descendants
continue to have only a naked ownership interest. La. Civ. Code art. 89 1 .
c. Donation of Immovable Property Exception
Ascendants inherit to the exclusion of all others when they donate an immovable to a
descendant, and the descendant dies without posterity and has not disposed of the
immovable. La. Civ. Code art. 897. However, ifthe immovable donated has been alienated by
the descendant on a credit basis and the full price is not yet due, the ascendant has a right to
receive the proceeds. The donor-ascendant also has a right of reversion ifthe donee-descendant
placed any conditions on the alienation of the immovable. Id.
1) Obligations Imposed on the Donor-Ascendant upon Return of Immovable
If the ascendant inherits the immovable property under La. Civ. Code art. 897, he takes it
"subject to all the mortgages which the donee may have imposed on [the immovable
property] during [the donee's] lifetime." La. Civ. Code art. 898. Further, the ascendant who
exercises the right of reversion is bound to contribute to the payment of the debts of the
succession of the descendant, in proportion to the value of the immovable previously
donated. Id.
d. To Siblings if No Surviving Parents
In the absence of descendants and if there is no parent surviving, the entire estate goes to the
siblings of the decedent to the exclusion of all others. La. Civ. Code art. 892.
1) Representation
Representation does take place in the sibling line. Representation is discussed in more
detail below.
2) Half-Blood Siblings
If there are siblings of different unions (i. e. , half-blood siblings), the property is divided
equally between the paternal and maternal lines. Those who share both parents with the
deceased sibling take in both lines. Half-blood siblings take only in their respective lines.
La. Civ. Code aii. 893.
Example: Father's first wife dies. Father remarries and he and second wife die. Child D
of second marriage dies, survived by B and C, who are two living children also from
second marriage of Father and second wife. D is also survived by A, who is the only
child from marriage of Father and first wife. The result is A gets one-sixth ( 1 16); B gets
five-twelfths (5/12); and C gets five-twelfths (5/12). The diagram at the top of the next
page may help you visualize this concept:
M-2
M- 1
F-112
M- 112
A-1 16
B-116
C-116
B- 1/4
C- 114
M
H
Note: Note the phrase, "not judicially separated." Watch out for the spouse who is judicially
separated, but not divorced. In that case, the spouse will not inherit the decedent' s separate
property.
4. More Remote Ascendants
If the deceased has no surviving descendants, siblings, parents or surviving spouse, and a
grandparent or grandparents survive, then they divide the estate. La. Civ. Code art. 895.
a. One Ascendant Nearer in Degree
If there is one ascendant who is nearer in degree than the others, he takes everything.
GF
GMi
GF
M
F
x
Uncle
GF-
GM-1 /4
M
x
c. No Representation
There is no representation in the ascending line.
5. More Remote Collaterals
If the deceased has no surviving descendants, parents, siblings, or ascendants, then the nearest
collaterals will take, by counting to the nearest degree. There is no representation here, only
equal division by heads. La. Civ. Code art. 896.
6. No Heirs
If there are no heirs as discussed above, the estate escheats to the state. La. Civ. Code art. 902.
F. INHERITANCE OF COMMUNITY PROPERTY BY INTESTACY
1 . Surviving Spouse's Half of Community Property
If one spouse, say the husband, dies, the surviving spouse, the wife, has full ownership of her
one-half share of all community property, not by inheritance but as owner.
2 . Decedent Spouse's Half o f Community Property
a. If Children or Other Descendants
If there are children or other descendants, the decedent' s one-half interest in community
property goes to them subject to a usufruct granted by law (La. Civ. Code art. 890) in favor
of the surviving spouse (see below at 3 .).
1) If Child Renounces Parent's Half of Community
If a child renounces his parent' s half of community, the child' s descendants inherit, rather
than the deceased parent' s spouse. See La. Civ. Code art. 964.
b. If No Children or Other Descendants
If the decedent leaves no descendants, then the decedent' s one-half interest in community
property goes to the surviving spouse. La. Civ. Code art. 889.
c. Community Property of a Putative Marriage
1) Decedent Spouse in Good Faith
If the deceased spouse is in good faith, that spouse' s share in community property goes to
his successors. The legal and putative spouses share the other half pro rata.
barbrr
Note: Recall that the surviving spouse still owns her one-half share in community property
by her own right. Article 890 gives the surviving spouse a usufruct only over the decedent' s
one-half interest to which the children would have otherwise succeeded.
1) Children not of the Marriage
This usufruct applies even when the children who inherit are not children of the marriage.
2) Necessity of Security
Generally, the surviving spouse is not required to give security to the naked owner(s) under
the 890 usufruct. However, Civil Code article 573 provides that security is not dispensed
with for an 890 usufruct when the naked owner is not a child of the surviving spouse.
b. Duration
The 890 usufruct continues until the surviving spouse dies or remarries, "whichever occurs
first."
c. Contrast a Surviving Spouse's Usufruct by Will
By will (disposition mortis causa), a usufruct can be granted to a surviving spouse even over
separate property. La. Civ. Code art. 1 499. This 1 499 usufruct can also be granted for life
without the remarriage restriction in article 890.
G. INHERITANCE RIGHTS OF ADOPTED CHILDREN
1. Generally
Adopted persons are entitled to full inheritance rights as if they were born of the decedent' s
marriage (legitimate). Concurrence o f spouse is required for a married person t o adopt.
2. From Whom Can the Adopted Person Inherit?
The adopted person may inherit not only from his adoptive parent(s) but also from his natural
parents and relatives. La. Civ. Code art. 1 99.
3. Inheritance Rights of Biological Parents Not Reciprocal
Natural parents and relatives cannot inherit from the person who is "legally" adopted. For them,
the legal adoption severs their inheritance rights.
or
age is no longer relevant. Regardless of age, the child has one year from the alleged
father's death to institute the action.
4. Avowal Action
A biological father may file suit to establish his paternity of a child, even if the child is presumed
to be the child of another man.
a. Civil Proceeding Required
The b urden of proof in an avowal action is on the father, and he must prove his paternity by a
prepo nderance of the evidence.
b. Time Limits
1) If the Child Is Presumed the Child of another Man
The action must be filed within one year from the birth of the child. If, however, the
mother in bad faith deceived the father regarding his paternity, the action must be filed
within one year from the day the father knew or should have known of his paternity or
within ten years of the birth of the child, whichever occurs first. In any event, the action
must be filed within one year of the child' s death.
2) If the Child Is not Presumed the Child of another Man
Father can file suit at any time, but no later than one year from the child' s death.
5. Other Possibilities
A contestation action brought by the mother can also give rise to new rights (including
inheritance rights) of a child born outside of marriage.
6. Further Referenee
Consult generally, section IX. BIOLOGICAL FILIATION of the PERSONS outline.
I. REPRESENTATION
1 . Effect o n Degree Count
Representation has an effect on degree count. Descendants of children or siblings of the
decedent who would take, but have predeceased the decedent, take by representation (i.e. , those
relatives ' descendants step into the shoes of their deceased ancestor.)
2. Who May Be Represented
Generally, only a deceased person can be represented. La. Civ. Code art. 886. However, there
are a few occasions for a form of quasi-representation of a living person in special instances
(renunciation, unworthiness, and lapse of a j oint legacy under a will to a child or sibling).
3. Where Representation Takes Place
Representation does not take place in the ascending line; it only takes place in the descending or
collateral line.
S2
J.- -
A/
' ,,
B
c
B- 114
B2
B3
3
NO:
Uncle
N
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Example: "I hereby renounce my rights to my father' s succession. In the event my grandfather
dies after my father, I may still represent my father in my grandfather' s succession."
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Example: "I leave my property to my son. If he does not survive me by six months, I leave my
property to my good friend, Sue."
K. SEIZIN - "LE MORT SAISIT LE VIF."
Succession occurs at the death of the decedent. La. Civ. Code art. 934. A successor acquires
ownership, or is "seized," of the decedent' s property immediately upon the decedent's death. La.
Civ. Code art. 935.
1. Universal Successors
A universal successor acquires ownership "of the estate." La. Civ. Code art. 935.
2. Particular Successors
A particular successor acquires ownership "of the things bequeathed" to him. La. Civ. Code art.
935.
3. Effects-Transmission
The heir transmits the succession to his own heirs. La. Civ. Code art. 937. The heir can institute
all actions the decedent could institute, and can prosecute those already commenced. The rights
o f the successor are transmitted to his own successors at his death, regardless o f whether he
accepted the rights. Ref I.B.3 ., supra.
4. Possession
Possession of the decedent is also transferred to the successors. La. Civ. Code art. 936. Note the
rule that a particular successor may commence a new possession for purposes of acquisitive
prescription. Id.
5. Exercise of Succession Rights
The exercise of succession rights is limited if there is a succession representative. Prior to the
appointment of a succession representative, a successor may exercise ownership rights in terms
of his interests in a thing of the decedent' s estate as well as his interest in the estate as a whole.
La. Civ. Code art. 938. The alienation, encumbrance or lease of estate things by a successor is
subordinate to the power of a succession representative if exercised after the representative has
been duly appointed. Id.
L. UNWORTHINESS
1. Generally
When an heir or legatee is judicially declared unworthy, he is deprived of the right to inherit. La.
Civ. Code art. 945(1 ). Unworthiness is not automatic; it must be pronounced by a court in an
action filed in the succession proceeding of the decedent.
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Formerly, acceptance or renunciation had to take place within 30 years. The rule was
repealed as unnecessary since all successors are presumed to accept. The "good cause" rule
of compelling a successor to accept or renounce grants a court discretion to make the
successor decide and not impede the administration of the succession.
g. Effect on Creditors
1) Can Prohibit Renunciation by Successor
A creditor of a successor may prohibit his debtor's renunciation of a succession, at least
to the extent of the debt; the renunciation remains effective as to the debtor-heir. La. Civ.
Code art. 967.
2) Oblique Action
Note also that whenever a debtor causes or increases his insolvency by failing to exercise
a right, the creditor may exercise that right unless it is purely personal to the debtor. La.
Civ. Code art. 2044. Recent cases in Louisiana make this oblique action more difficult
for a creditor; the Louisiana Supreme Court has held that the creditor must show fraud on
the part of the debtor and intent to injure the creditor.
4. Acceptance
Acceptance can be either formal (express) or informal (tacit).
a. Formal Acceptance
"Formal" acceptance is express and in writing or in a judicial proceeding (e.g. , assumes the
quality of a successor in a judicial proceeding, as, for example, a petition for possession).
La. Civ. Code art. 957.
b. Informal Acceptance
"Informal'' acceptance is an act that implies intent to accept (e.g. , takes possession of the
property). La. Civ. Code art. 957.
1) Act Without Knowledge
An act without knowledge or an intention to accept is not an acceptance. La. Civ. Code
art. 958. The successor must know that the property belongs to estate of the decedent.
2) Act of Ownership Required
An act of ownership is required, not a mere custodial act. La. Civ. Code art. 959.
Moreover, a conservatory act done to preserve a thing does not constitute informal
acceptance.
3) Acceptance Manifested by an Act of the Heir
Acceptance is manifested by an act of the heir. It must be an act of ownership such as the
alienation, lease, or encumbrance of the inherited share (e.g., a donation or a sale).
c. When an Act of Renunciation is Really an Acceptance
An act of renunciation is an acceptance if it is made for a price or if it is gratuitous but made
in favor of anyone to whom the inheritance would not otherwise accrete.
d. Effect of Acceptance - Successor's Liability
A successor is liable for debts of estate, but liability is limited to the value of the property the
heir actually receives, valued at the time of receipt. La. Civ. Code art. 1 4 1 6.
5. Renunciation
Renunciation must be express and in writing. La. Civ. Code art. 963. It does not have to be by
authentic act but likewise. cannot merely be oral.
a. Application
The application of the rules of renunciation depends on whether one is dealing with a testate
or intestate succession.
1) Intestate Successions
For intestate succession, accretion flows as if renouncing heir predeceased the decedent.
Thus, if the renouncing heir is a child or sibling of the decedent and has children, his
share will now go to his own children instead of to a "co-heir of the same degree." La.
Civ. Code art. 964.
2) Testate Successions
For testate succession, renunciation is also treated as if the legatee predeceased the
testator. However, if there is a "governing testamentary disposition," the testament
governs the accretion. La. Civ. Code art. 965 .
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An
Reference: Definitions at the very beginning of this outline (re: "universal successor").
b. Successors as Creditors
A successor who is a creditor of the estate is paid in the same order of preference as other
creditors. La. Civ. Code art. 1 4 1 8. He is given no special benefit or detriment merely for
being a successor.
c. New Creditor-Order of How Claim is Satisfied
When a new creditor (after court-ordered distribution of the estate to successors or payment
has already been made to other creditors) asserts rights, there is a certain order in which his
claim can be satisfied: first, from the assets remaining under administration of the estate;
next, from the successors to whom distribution has been made; and then from unsecured
creditors who received payments, but only in proportion to the amounts actually received by
them and only for the share of the new creditor. La. Civ. Code art. 1 4 1 9.
d. Order of Payment-Generally
1) Secured Creditors
If a creditor of an estate is secured (e.g. , a mortgage on estate immovable property or a
Chapter 9 security interest in estate movable property), then the creditor will be paid in
accordance with the preference and priority of his security right.
2) Unsecured Creditors
The unsecured creditors share pro rata with other unsecured creditors. See generally La.
Civ. Code art. 3 1 83 (the property of a debtor is the common pledge of his creditors, and
proceeds are distributed among them on a pro rata basis).
3. Apportionment of Debts among Successors Themselves
a. Shifting Responsibility among Successors by Testator or Successors' Agreement
The testator may, in his will, make specific provisions for the payment of debts. Further, the
successors themselves may agree on allocation of payment of estate debts. La. Civ. Code art.
1 420. The rights of creditors of the estate, however, cannot be impaired by a testator' s will
or by agreement among the successors. Id.
b. Charges on Identifiable Property
Estate debts attributable to identifiable property are generally chargeable to that property and
its fruits and products. La. Civ. Code art. 1 422.
c. Debts of the Decedent-How Charged
Debts of the decedent are charged ratably to property that is the object of general and
universal legacies and property that passes by intestacy, valued at the date of death. La. Civ.
Code art. 1 423. If this property is insufficient, the debts remaining are charged in the
following order:
1 ) Ratably to the fruits and products of property that is the object of general and universal
legacies and of property that devolves by intestacy.
then
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2) Ratably to the fruits and products of property that is the object of particular legacies, and
then ratably to such property itself. Id.
d. Administration Expenses-How Charged
Administration expenses are charged ratably to fruits and products of property that is the
object of general and universal legacies and property that passes by intestacy. La. Civ. Code
art. 1 424. If insufficient, the remaining expenses are charged first to the property itself, next
to the fruits and products of property of particular legacies, and then to the particular legacy
property itself. Id.
e. Allocation of Receipts and Expenditures
Unless otherwise indicated by law or by provision in the testament, receipts and expenditures
are allocated to all successors pursuant to fairness and equity. La. Civ. Code art. 1 426, ifl .
1) Succession Representative's Compensation and Professional Services Fees
Expenditures involving compensation to the succession representative as well as
attorneys' fees, accounting fees, and other professional fees incurred in conjunction with
administration of the decedent's estate are allocated between debts of the decedent and
administration expenses in accordance with this standard. La. Civ. Code art. 1 426, 41f2.
2) Tax Consequences
The succession representative or all of the successors may, for tax purposes, report
receipts and deduct expenditures as authorized by tax law notwithstanding rules in the
Civil Code. La. Civ. Code art. 1 427.
f.
1) the rights and obligations (laid out in the Civil Code) of a usufructuary with respect to
payment of estate debts. La. Civ. Code art. 1 428.
Reference section Vlll.A.2. d. 6) (entitled, "Debts of Grantor '') in the LOUISIANA
PROPERTY & A CQUISITIVE PRESCRIPTION outline as recent changes to the law of
usufntct (Act 881 of201 OJ relate to a usufructuary and the payment of estate debts.
2) the rights and obligations (laid out in the Trust Code in Title 9) of an income interest in
trust with respect to payment of estate debts. La. Civ. Code art. 1429.
II. DONATIONS-GENERALLY
A. OVERVIEW
In Louisiana, there are two kinds of donations: donations inter vivas and donations mortis causa.
Property can only be acquired or disposed of gratuitously by these forms. La. Civ. Code art. 1467.
The Civil Code provides forms for both, and these formalities are sacrosanct. Form often becomes
substance here; if the form required by the Code is not followed, the donation will be invalid.
1.
Note: Formerly, donations made during the last illness to doctors and ministers who
treated the decedent during his last illness were invalid unless the donation was
remunerative or onerous or the recipient was a relative of the donor. This prohibition
has been repealed, but a vestige remains : the existence of a confidential relationship
(e.g. , doctor/patient, minister/parishioner, nurse/patient, or attorney/client) may affect
the burden of proof when a donation is attacked on the grounds of undue influence as
discussed immediately above.
e) Fiduciary Appointments
One who commits fraud, exercises duress, or unduly influences a donor shall also not
be permitted to serve as the executor, trustee, attorney or other fiduciary pursuant to a
designation as such in a donation or testament. La. Civ. Code art. 1 48 1 .
3) Former Law-Test Being of "Sound Mind" and Use of Factor Now
Prior to July 6, 1 99 1 , the exclusive test was whether the testator was of "sound mind."
This test was rejected, among other reasons, to overrule cases which held that a testator
who was eighteen years or older but who had a mental age of less than eighteen was of
"sound mind." Now, the testator's mental age is one factor to consider when determining
whether he can comprehend the nature and the consequences of his disposition.
d. Conflict of Laws
A person will have capacity to make a testament if, at the time of making the testament, he
possessed that capacity under the law of the state ( 1 ) where he was domiciled at the time of
making the testament, or (2) where he was domiciled at the time of his death. La. Civ. Code
art. 3 529, 1 .
1 ) C apable under Laws o f Both States-Vices o f Capacity
If the testator was capable under the laws of both states, his will shall be held free of
vices if it would be so under the law of either one of the states. La. Civ. Code art. 3529,
iJ2.
2) Capable under Laws of One of the States-Vices of Capacity
If the testator was capable under the laws of only one of the states (state of domicile at
time of execution of the will or state of domicile at time of death), his will shall be held
free of vices only if it would be so under the law of the state where he was considered to
have capacity. La. Civ. Code art. 3529, iJ3 .
2. Capacity of the Do nee to Receive Donations
a. Generally
To receive, the donee must be in existence at the time of acceptance of the gift for donations
inter vivas or at the time of the testator' s death for donations martis causa. La. Civ. Code art.
1472.
1) Unborn Children "In Utero"
For a donation inter vivas, an unborn child must be in utero when the donation is made.
For donations martis causa, the child must be in utero when the testator dies. In both
cases, the child must also be born alive for the donation to be effective. La. Civ. Code
art. 1474.
a) Posthumously Conceived Children
A special exception in title 9 permits a child conceived after the father is deceased to
inherit from the father provided: ( 1 ) the mother is the surviving spouse; (2) the father
specifically authorized in writing his surviving spouse to use his gametes; and (3) the
child is born within three years of the death of the decedent father. La. Rev. Stat.
9:391 . l .
Note: Other successors whose rights are affected have one year from the birth of the
child to disavow paternity.
2) Organizations
A donation to an organization is valid if the organization exists at the time the donation
takes effect.
b. Donations Subject to a Suspensive Condition
If the donation hinges on the fulfillment of a suspensive condition, the donee must have the
capacity to receive at the time the condition is fulfilled. La. Civ. Code art. 1473 .
c. Acceptance on Behalf of Minors
Gifts to minors may be accepted by tutors or by the trustee if given in trust.
C. REPROBATED DISPOSITIONS
Conditions made in a donation inter vivas or disposition mortis causa that are impossible, immoral,
or are contrary to law are regarded as never made and are therefore void. La. Civ. Code art. 1 5 1 9.
Examples would be prohibiting marriage or denying a civil or basic right. One cannot impose a
condition outlined above, but resting the disposition on status existing at death is valid (e.g. ,
"Provided he or she is not married at my death"). See Succession ofRuxton, 78 So.2d 1 83 (La.
1 955).
1. Prohibited Substitutions
a. Definition
A disposition not in trust to a first donee, called an institute who is charged to preserve a
thing and deliver it at his death to a second donee, called the substitute, is null, with regard to
both the institute and the substitute. La. Civ. Code art. 1 520.
b. Two Parts for Prohibition
To be prohibited, there must be a donation to the first donee (the institute) coupled with a
double charge: ( 1 ) to preserve the property and (2) to deliver it to another person (the
substitute) at the death of the first donee.
1) Charge to Preserve Property and Deliver Before Death not Prohibited
A charge to preserve property but no charge to deliver at death, so that the property can
be delivered by the first donee to the second donee before that time, is not a substitution
and thus is not prohibited.
Example: A charge to preserve property for a child and deliver it to the child at age
twenty-five is not a substitution. Pragmatically, it is a "mini-trust."
2) Substitution de eo quod supererit not Prohibited
Further, if there is no charge to preserve property by a first donee, but the first donee is
obligated to deliver whatever is left of the thing to a second donee, there is no prohibited
substitution. This is the substitution de eo quad supererit, or the substitution de residua;
it is valid as to whatever remains of the property.
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Example: "To A, but at his death to B" is prohibited, if it is full ownership to A to begin
with. If it is usufruct to A, naked ownership to B, it is valid.
2. Vulgar Substitutions
If a gift is in full ownership merely providing that in the event a first donee (legatee or trust
beneficiary) cannot take the gift, a second donee will take it, then it is valid. La. Civ. Code art.
1 52 1 . This is not a prohibited substitution but instead is referred to as a "vulgar substitution."
a. Period of Survivorship
A testator may indicate in his will that a legatee or trust beneficiary survive the testator for a
stipulated period; the stated period cannot be longer than six months (former rule was 90
days, changed in 200 1 to match the time periods of other states' short-term survivorship
rules). If the condition is not fulfilled as to the first donee' s survivorship, the second donee
will take the gift. La. Civ. Code art. 1 52 1 .
b. Temporal Effects
The right of the first donee is suspended until the survivor' s survivorship beyond the
stipulated period is determined. If the first donee survives the stipulated period, he is
considered to have succeeded to the deceased from the moment of the decedent' s death. If
the first donee does not survive the stipulated period, he is considered as never having
received the disposition, and the second donee is considered as having succeeded to the
deceased from the moment of the donor' s death. La. Civ. Code art. 1 52 1 .
or
4) with regard to immovable property, the law that would be applied by the courts of the
state in which the immovable is situated.
La. Civ. Code art. 3 528.
e. Transactions Exempted (from Form Rules)
Some transactions that look like gifts and have the same effect as gifts are not subject to the
formal rules governing donations. These often occur in the context of donations mortis
causa. Life insurance proceeds and U.S. savings bonds, for example, have their own rules
and generally pass outside of the estate.
1) Life Insurance
Life insurance proceeds pass outside of the probate estate, unless payable to the executor
as such; thus, the requisite formalities in the Code for donations have no application. The
proceeds will go to the named beneficiary in the policy.
a) Donation of an Insurance Policy
Donation of an insurance policy is governed by the Insurance Code and only requires
the use of the insurance company' s f01m.
b) Distinguishing Annuity from Life Insurance
An annuity is different from life insurance and is more like a savings account. The
beneficiary of proceeds from an annuity is protected from heirs and legatees, and
even from creditors, "saving the rights of forced heirs." La. Rev. Stat. 22 : 647B.
2) Individual Retirement Accounts (IRAs)
Benefits from an IRA, established by federal law, shall be paid as provided in the IRA
agreement to the designated beneficiary of the account. This applies even if a decedent
indicates a beneficiary of the IRA in his last will and testament.
3) U.S. Savings Bonds
Savings bonds are governed by federal law and also pass outside of the estate; Civil Code
formalities do not apply. The bonds can be held in co-ownership, and the named payee
will get the funds.
Note: The bonds cannot be used to defeat the rights of forced heirs. First, the legitime
must be calculated (discussed infra), and the value of the bonds is included in that
calculation. If the legitime has been impinged, the forced heir may have an action against
the beneficiary of the bonds.
2. Olographic Testaments
The olographic testament is one entirely written, dated, and signed in the handwriting of the
testator. It is subject to no other requirements as to form. La. Civ. Code art. 1 575.
a. Formalities
1) Hand Written
The olographic will must be entirely written in the handwriting of the testator. Any
changes to the testament (additions and deletions) may be given effect only if also made
by the hand of the testator. La. Civ. Code art. 1 575. To probate the will, two witnesses
must identify the testator's handwriting.
2) Signature
The testator' s signature should be at the end of the will. However, if anything is written
by the testator after his signature, the will is not invalid, and the court may, in its
discretion, consider the writing as part of the testament. La. Civ. Code art. 1 575.
3) Date
The olographic will must be dated, and the date can appear anywhere on the testament.
An uncertain date will not invalidate the testament; the date is sufficient if the day, month
and year are "reasonably ascertainable" from information in the testament. This
information can be clarified by extrinsic evidence, if necessary. Id.
Example: John writes entirely in his own handwriting on a card to his wife Susan, "It is
my intent to make this writing my last will and testament. I leave all my property to you,
my darling wife, Susan on this date in 2008, the date of our 46th wedding anniversary. /s/
John." The date of John and Susan's wedding anniversary can be clarified by extrinsic
evidence.
b. Possible Problems-Necessity of Intent to Dispose
Intent to dispose of property is essential. This can be problematic to ascertain since the
olographic will lacks many of the formalities of the notarial will.
1) Letters and Memos
A letter can be a valid olographic will if the requisite intent is present. One case in
Louisiana has already held, however, that a memo to an attorney telling him how the
"testator" wished his property to be disposed of was not a valid olographic will.
Although written entirely by the hand of the testator, signed and dated, the "testator" did
not intend that the memo be a will. Hendry v. Succession ofHelms, 557 So.2d 427 (La.
App. 1 990).
2) Pre-Printed Will Forms
If a will is written in the hand of the testator on a form with printed or typed words, a
court may ignore all pre-printed matter and uphold the will as a valid olographic
testament if testamentary intent can be ascertained solely from the material in the
testator's handwriting. Succession ofBurke, 365 So.2d 258 (La. App. 4th Cir. 1 978).
3. Notarial Testaments
The notarial will is self-proving provided the formalities below are followed. There are five
principal types of notarial testaments: ( 1 ) the standard notarial testament, (2) the testament for
persons who can and know how to read but physically are unable to sign their name, (3) the
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testament for sight-impaired persons or persons unable to read, (4) braille testaments, and (5)
testaments for deaf persons or deaf and blind persons.
a. Formalities of Standard Notarial Testament
A testator must be able to read and write and sign his name for the standard notarial
testament. La. Civ. Code art. 1 577.
1) Execution
The execution of a notarial testament must be before a notary and two competent
witnesses. The testator must declare in the presence of the notary and two witnesses, that
the document is his will. If the witnesses are not present when the document is executed
(i. e. , when the testator signs the will), the testament is void.
2) Writing
The provisions of the notarial testament may be written, printed, or typed. There is no
requirement that the testament even be in the English language, so long as it is written in
a language that the testator can read and understand.
a) Signatures
The testator must sign on each page and at the end of the will. The testator must
know how to and be able to sign his name.
b) Literacy
The testator must know how to and be able to read.
3) Date
The will can be dated anywhere on the will. The date need not even be made by the
testator, nor is it required that the will be dated in the presence of the notary and two
witnesses. It is common practice to have a typewritten testament that is already dated.
4) Attestation Clause
The attestation clause is a declaration by the notary and witnesses at the end of the will
that states that all formalities have been met (the "self-proving" element). It is essential
that the notary and two witnesses sign the attestation clause and do so in the presence of
the testator and each other. It is technically not necessary for the testator to also sign the
attestation clause.
b. Formalities of the Testament for Persons who Can and Know How to Read but
Physically Unable to Sign their Name
The ordinary requirements for a standard notarial testament apply to the execution of a
testament by someone physically unable to sign his name, except as modified below. La.
Civ. Code art. 1 578, cmt.
1) Signature or Mark
If the testator knows how to sign his name but is unable to do so because of a physical
infirmity, he may make his mark. If unable to make a mark, he may direct another person
to assist him in affixing his mark or to sign for him. La. Civ. Code art. 1 578. This "other
person," if required, may be the notary or one of the witnesses. As with the standard
notarial testament, the mark or other person' s signature must be on every page and at the
end of the testament.
2) Attestation Clause
The two witnesses and the notary attest in the presence of one another and the testator
that the testator signifies the instrument to be his will, that he is able to see and read and
knows how to sign his name but is unable to do so because of a physical infinnity and has
affixed, or caused to be affixed, his mark or name where appropriate.
c. Formalities of the Testament for Sight-Impaired Persons or Persons Unable to Read
La. Civ. Code art. 1 579
1) Execution
The testament under this form must be written and executed in front of a notary and two
competent witnesses (both of whom must be able to read and able to sign their names).
The testator declares that he heard the will' s reading and signs or marks every page and at
the end. If unable to sign, the reason for such inability must be stated.
2) Dated and Read Aloud
The testament must be dated and read aloud to the testator. One of the witnesses, the
notary or a third person may be the person who reads the testament aloud. The witnesses
and notary, unless he is the one reading the testament, must follow on copies while the
testament is being read aloud.
3) Attestation Clause
The attestation of compliance must include that the will was read aloud and the notary
and two witnesses must sign it in one another' s presence and in the presence of the
testator.
4) Valid for Any Person
Any person can execute a testament in this form even with its more exacting fonnalities
even if they would qualify under the standard notarial testament.
d. Formalities of Braille Testaments La. Civ. Code art. 1 580
1) Witnesses
Two witnesses are required, and no need to read aloud.
2) Testator's Ability to Read Braille
The testator must know how to and be able to read braille (i.e. , he must know how to read
braille physically and intellectually).
3) Attestation Clause Requirements
The attestation clause must be in writing, not in braille.
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3) Choice of Accommodations
The testator must be given the choice of accommodation services such as large print,
braille, or a tactile interpreter.
C. COMPETENCY OF WITNESSES TO TESTAMENTS
Generally, a person cannot be a witness to a testament if he is insane, blind, or unable to sign his
name. A person under the age of sixteen also cannot be a witness. La. Civ. Code art. 1 5 8 1 .
Note: The issue of witness competency i s only discussed in the context of notarial testaments.
1 . Deaf Person a s a Witness
A deaf person may witness a regular notarial testament (form explained under III.B., supra) but
not the notarial testament for sight-impaired persons or persons who do not know how to read.
La. Civ. Code art. 1 5 8 1 .
2. Literacy Ability of Witnesses
A person who cannot read may not be a witness to a notarial testament for sight-impaired
persons or persons who do not know how to read. La. Civ. Code art. 1 5 8 1 .
a. Extent of Inheritance
When a witness-legatee or the spouse of a witness-legatee would be entitled to inherit as an
intestate successor (had the decedent died intestate), he/she may inherit the lesser of his/her
intestate share or the legacy. La. Civ. Code arts. 1 5 82 and 1 582. 1 .
b. Serving as Notary
A legatee may not serve as a notary either, but this prohibition does not extend to spouses of
notaries as it does to spouses of witnesses. Also, the notary does not have the right to inherit
an intestate share even if it would be less; rather, the notary who is a legatee receives
nothing. La. Civ. Code art. 1 582.
D. EXECUTORS AND ATTORNEYS
1 . Designation a s Executor not a Legacy
The designation of an executor (or other succession representative), trustee or attorney handling
the estate is not a bequest. La. Civ. Code art. 1 583 .
a. Use of Testator's Attorney by Executor
The naming of an attorney in a will is construed as precatory and is not binding on the
executor and the executor is not required to use the named attorney. Succession ofJenkins,
48 1 So.2d 607 (La. 1 986). If the executor does choose to use the named attorney, he can
dismiss the named attorney for any reason, not necessarily for just cause.
1) Removal of Estate Attorney for "Just Cause"
Article 1 5 83 and this case sought to overrule the strict requirements in title 9 which
required that the designation of an attorney be binding on the executor and that the
attorney designated in the testator' s will could only be removed for just cause. La. Rev.
Stat. 9:2448; see generally Succession of Wallace, 574 So.2d 348 (La. 1 99 1 ) (holding the
"just cause" provision of La. Rev. Stat. 9:2448 unconstitutional)
b. As to Trusts and as to Other Professionals
The rule mentioned immediately above also applies to naming an attorney for a trust, and
most likely also applies to designating accountants and other professionals in a will, as one
case has ruled the designation of professionals other than lawyers was precatory in a trust
context.
2. Delegation of Authority to Executor
Generally speaking, a gift cannot be given to the executor to bequeath to whom he sees fit. La.
Civ. Code art. 1 572. There are exceptions to this rule, and these exceptions widen the authority
that may be delegated to an executor compared to the law in effect prior to the 1 999 revision of
successions law.
a. Certain Assets
A testator is permitted to authorize the executor to select assets to satisfy bequests made by
value or quantum, so long as the testator selects the value or quantum of the gift. La. Civ.
Code art. 1 572, '1!1 .
Example: "I leave all of my property to my three children in equal shares of 1/3 each.
Further, I authorize my executor to select assets to satisfy these legacies."
b. As to Charities
The testator may also authorize the executor to allocate a legacy among different charities
("entities or trustees of trusts organized for educational, charitable, religious or other
philanthropic purposes" in the language of the Code article) and even to select the charity
when authorized to do so by the testator. Lastly, the testator may expressly delegate to his
executor the authority to impose conditions on those legacies. La Civ. Code art. 1 572, '112 .
c. Delegating Rights as Executor
A person confirmed as an executor (or other succession representative) may, by power of
attorney, designate a person to manage in his stead. This mandatary may also substitute
another person to manage in his place but only if the procuration executed by the original
executor empowers the original mandatary to substitute. La. Rev. Stat. 9 : 1 5 1 7 .
3. Notary a s Executor
The notary to the testament may be named as executor or trustee under the will and still be the
officiating notary.
4. Executor or Attorney as Witness
An executor or attorney may be a witness if he has not otherwise been named as a legatee.
5. Recall Capacity Rule for Fiduciary Appointments
Remember that one who commits fraud, exercises duress, or unduly influences a donor, or whose
appointment is procured through such means, shall not be permitted to serve as the executor,
trustee, attorney or other fiduciary pursuant to a designation as such in a donation or testament.
La. Civ. Code art. 1 48 1 .
E. CLASSIFICATION OF LEGACIES
There are three types of testamentary dispositions: particular legacies, general legacies, and universal
legacies. La. Civ. Code art. 1 584.
1. Universal Legacy
The testator gives to one or to several persons the whole of the property, or the "balance" or
"residue" of all of the property left after particular legacies. La. Civ. Code art. 1 585. All
"residuary" legacies are universal or are treated as universal, but not all universal legacies are
residual:
Examples: "all of my estate to A" is universal, but not residual; In the example, "Blackacre to A,
the balance of my estate to B," the legacy to B is both residual and universal.
2. General Legacy
A "general legacy" is defined in two ways:
Example #1 : "One-half of all my movable property to B" is fractional and is thus a general
legacy.
Example #2: "All of my separate corporeal property" is not a legacy of only "one" of the
categories above, and is therefore a particular legacy, not a general legacy.
c. General Legacy of "Residue or Balance of the Estate"
For purposes of accretion, when a general legacy is phrased as a residue or balance of the
estate without specifying that the residue or balance is the remaining fraction or a certain
portion of the estate after the other general legacies, it shall be treated as a universal legacy.
La. Civ. Code art. 1 595, if2.
3. Particular Legacy
All other bequests that are neither general nor universal are particular legacies. La. Civ. Code
art. 1 587. These are usually those of specific property.
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or
7) the legacy is declared null, as for example, for fraud, duress, or undue influence.
La. Civ. Code art. 1 589.
b. Effect of Lapse
The effect of a lapsed legacy is accretion. The law favors devolution of a lapsed legacy to
another designated legatee in the testament rather than have it devolve by intestacy.
1) Generally
When a particular or a general legacy lapses, it goes to the successor who would have
received the property under the testament if the legacy had not been made. La. Civ. Code
art. 1 59 1 .
Example: "I leave my original edition Harry Potter and the Sorcerer 's Stone to Andy.
Subject to that, I leave all of my books to Joe." Andy is then declared unworthy; Joe
receives the original edition Hany Potter and the Sorcerer 's Stone because he would
have received it had the legacy to Andy not been made in the first place.
2) Lapse due to Renunciation
Accretion flows as if the legatee predeceased the testator, but the testament may provide
for the accretion by a "governing testamentary disposition." In the absence of such a
disposition, the rights of a testate successor who renounces accrete to those persons who
would have succeeded to them if the legatee had predeceased the decedent. La. Civ.
Code art. 965.
3) Exception to General Rule: Most Favored Class Rule
If the legatee whose legacy lapses is a child of the testator or a sibling of the testator, or a
descendant of a child or sibling, accretion takes place in favor of descendants of the
legatee, j oint or otherwise. La. Civ. Code art. 1 593 . These relatives are in a kind of
"most favored class," because their relationship to the testator elevates them to a
privileged position that cuts across the general rule.
4) Accretion to Universal Legatee
All lapsed legacies not disposed of by the Code articles concerning lapse accrete to the
universal legatees. Remember: a general legacy that is phrased as a balance or residue of
the estate will be treated as a universal legacy for the purposes of accretion. La. Civ.
Code art. 1 595.
5) Intestacy Ultimately
Any portion of the estate not disposed of pursuant to the rules discussed above devolves
by intestacy. La. Civ. Code art. 1 596.
Note: Events occmTing after the death of the testator are governed by other principles of law
(such as the succession representative's duty to preserve and maintain).
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Note: Bequest o f a bank account depends on the language of the bequest. In one older case,
it was not considered a bequest of a "certain object," so it should not be a legacy of a
"specific thing" under the order rules above, and may be treated as a bequest of cash. Look
at the language carefully.
Note: There is also a special provision for the court to modify the rule for non-spousal
legatees and pennit delay for payment and/or modification regarding interest.
H. REVOCATION OR MODIFICATION OF TESTAMENTS
1 . Generally
A testator may revoke his will at any time (i.e. , testaments are "ambulatory," always revocable)
a. Form and Extent
Revocation may be express or tacit, and it may be total or partial.
b. No Renunciation
A testator may not renounce the right to revoke his will, nor may he agree to exercise the
right under certain conditions.
La. Civ. Code art. 1 606.
2. Revocation of Entire Testament
An entire testament may be revoked by authentic act, by a signed writing, by physically
destroying the testament or directing that it be destroyed, or by so stating in one of the forms for
testaments. La. Civ. Code art. 1 607.
a. Revocation Clause in a New Will
Testator declares in a new will that he revokes all prior wills. This must be in the form of a
will. La. Civ. Code art. 1 607(2).
b. Destroyed Will
If will is revoked by destruction, the destruction must be complete and total either by the
testator himself or by someone at his direction. La. Civ. Code art. 1 607(1).
1) Probating a Copy of a Will
When the original of a will cannot be found after a testator' s death, a presumption arises
that the testator destroyed the original will with the intent to revoke it. Such a
presumption only applies if the testament at issue was readily accessible to the decedent
prior to his death.
and
-- that the testament was not revoked by the testator.
Succession of Talbot, 530 So.2d 1 1 32 (La. 1 998) and Succession ofHatchell, 868
So.2d 36 (La. App. 1 st Cir. 1 1 /7/03).
2) Destruction-Multiple Originals
Destruction of one of the multiple originals of the same testament gives rise to a
presumption that the testament is revoked. Succession of Talbot, 530 So. 2d 1 1 32 (La.
1 988).
3) Lost Original Will
With respect to lost originals of wills, clear and convincing proof that a person other than
the testator destroyed the will without the direction, consent or permission of the testator
would be sufficient to overcome the presumption that the testator revoked the will by
destroying it. Succession ofDalier, 1 9 So.3d 8 (La. App. 4th Cir. 8/1 2/09) (first reported
case regarding the probate of a copy of a testament lost in Hurricane Katrina).
c. Revocation by Authentic Act
A testament can also be revoked by authentic act. An authentic act cannot be used to add or
modify, only to revoke. La. Civ. Code art. 1 607(2).
d. Revocation by Signed Writing
Revocation can also occur in a writing entirely written and signed by the testator that
identifies the testament to be revoked and clearly expresses intent to revoke. La. Civ. Code
art. 1 607(3).
e. Result
The result of a valid revocation is either intestacy or revival of an earlier testament that was
not destroyed.
3. Revocation of a Legacy or Testamentary Provision
A legacy or other testamentary disposition may be revoked by:
so declaring in one of the forms prescribed for testaments;
making a subsequent incompatible testamentary disposition;
making a subsequent inter vivos disposition of the thing and not reacquiring it;
Note: This signed writing does not necessarily have to be dated. Also note here that an
authentic act, sufficient to revoke an entire testament, is not sufficient to revoke a legacy.
divorce after execution of the testament and at the time of death of the testator, unless the
testator provides to the contrary. Testamentary designations or appointments of a spouse
(e.g. , executor, trustee, etc.) are likewise revoked under the same circumstances.
a. Tacit Revocation of a Legacy
Acts inconsistent with the testament's legacy may also operate as a revocation. This is tacit,
so the testament is not physically revoked.
1) Subsequent Inconsistent Mortis Causa Disposition
If the testator makes a subsequent mortis causa disposition inconsistent with a prior
testament, then this could be tacit revocation. La. Civ. Code art. 1 608(2). If the
disposition is valid as to fonn, it will revoke the prior disposition even if the new
disposition is invalid for some other reason.
2) Sale or Donation of Property Bequeathed
If the testator, during his life, donates or sells bequeathed property, the bequest is
revoked. La. Civ. Code art. 1 608(3).
a) Reacquisition of the Property
The bequest is not revoked if the testator reacquires the property before his death.
b) Jurisprudential Exception-Cash Bequests
The jurisprudence has carved out an exception by which this rule does not apply to a
cash legacy - alienations of cash during the lifetime of the donor do not revoke the
bequest.
b. Revocation and Form of Will Involved
1) Olographic Wills
As to olographic wills, additions or deletions on the testament may revoke ifthe testator
himself does these acts; otherwise, they are given no effect. La. Civ. Code art. 1 575B.
Thus, drawing lines or striking portions of a will may revoke provisions of an olographic
will, if done by the testator. La. Civ. Code art. 1 608(4)
.
2) Notarial Testaments
For all other testaments, to revoke, the lines must be signed by the testator, and to add to
or revise a disposition, the change must be both signed and dated. (i. e. , be in the fonn of a
valid olographic will). See generally La. Civ. Code art. 1 6 1 0.
c. Other Modifications of a Legacy
Any other modification of a legacy or other testamentary provision must be in the form of a
testament (e.g. , changing executors). La. Civ. Code art. 1 6 1 0.
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Example: Legacy # 1 : "All my blue ray discs to Jessie." Legacy #2: "My Special Edition
The King 's Speech blue ray disc to Nancy." The particular legacy to Nancy will prevail, and
he is entitled to only that blue ray disc with Jessie getting the rest in the collection.
e. Legacy to Creditor
A legacy to a creditor is not applied toward the satisfaction of the debt unless the testator
clearly indicates otherwise. La. Civ. Code art. 1 6 1 6 .
2. Conflict o f Laws
The meaning of words and phrases in a testament is determined by the law of the state expressly
designated by the testator or the law of the state clearly contemplated by him when making the
testament. If these selections are non-existent, the law of the state in which the testator was
domiciled at the time of making the testament is applied. La. Civ. Code art. 353 1 .
3 . Transitional Rules as t o Interpretation fo r Pre-January 1 , 1996 Wills, Death after January
1 , 1996-Specifically as to Forced Heirs
When a person dies, his estate is governed by the substantive provisions of the law in effect at
his death. But when a person dies testate on or after January 1 , 1 996, and the testament was
executed before January 1 , 1 996, there was an issue of ascertaining the testator' s intent to
interpret a legacy that could be relevant, albeit slightly.
a. Testator's Intent under former La. Rev. Stat. 9:2501
La. Rev. Stat. 9 :250 1 , now repealed, provided that the testator' s intent is ascertained as
follows:
1) Law in Effect at Time of Execution Unless
The testament is governed by the law in effect at the time the testator executed the will
unless the will:
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a) manifests an intent to disinherit or to restrict the forced heir to the legitime under the
law in effect at the time of the testator' s death, or
b) leaves the forced heir an amount less than the legitime under the law in effect at the
time the will was executed, or
c) omits a forced heir and the language of the will indicates an intent to restrict the
forced heir to an amount less than the legitime under the law in effect at the time the
will was executed.
2) Determining Testator's Intent if Under Above Situations
In the three instances referred to in 1 ) a), b) and c), the testator's intent is that the
testament be governed by the forced heirship law that became effective in 1 996.
b. Repeal of La. Rev. Stat. 9:2501-Time of Execution Determines Intent
La. Rev. Stat. 9:2501 was repealed in 200 1 , so there are no arbitrary rules in place; the court
has to ascertain intent on a case-by-case basis, but may look to the law in effect when the
testament was executed to determine intent.
The legislature shall provide by law for uniform procedures of successions and for the
rights of heirs or legatees and for testate and intestate succession. Except as provided in
Paragraph B of this Section, forced heirship is abolished in this state.
(B)
The legislature shall provide for the classification of descendants, of the first degree,
twenty-three years of age or younger as forced heirs. The legislature may also classify as
forced heirs descendants of any age who, because of mental incapacity or physical
infirmity, are incapable of taking care of their persons or administering their estates. The
amount of the forced portion reserved to heirs and the grounds for disinherison shall also
be provided by law. Trusts may be authorized by law and the forced portion may be
placed in trust." (italicized emphasis added)
b. Legitime
The forced portion of a particular forced heir is called his "legitime."
1) Satisfaction of the Legitime
As a general rule, the legitime can be satisfied only by full ownership or by naked
ownership burdened with the usufruct of the decedent' s surviving spouse, or by putting
the legitime in trust. La. Civ. Code art. 1496.
2) Legitime Not Satisfied by Usufruct to Forced Heir
Granting a usufruct (or an income interest in trust) to the forced heir will not satisfy the
legitime, even if the actuarial value of the usufruct (or the income interest) exceeds the
value of the legitime in full ownership. La. Civ. Code art. 1 502.
3) No Impermissible Burdens
There cannot be any charges, conditions, or burdens on the legitime except those
expressly allowed by law as briefly listed in II.A.2.a. 1 ). supra. La. Civ Code art. 1496.
Permissible impingements on a forced heir's legitime are addressed further under II.B.,
infra.
,
or
failing to communicate after attaining the age of majority, without just cause, for
a period of two years, unless the child was in the military forces of the United
States at the time.
Note: The cause of disinherison must occur prior to the execution of the instrument
disinheriting the forced heir. La. Civ. Code art. 1 62 1 B.
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(b)
Note: Notice the standard for the burden of proof is different for these two
exceptions.
(c)
Authorized Defenses
The heir may overcome the disinherison by establishing an authorized
defense. The defenses are that:
- because of age or mental capacity, the heir was not capable of
understanding the impropriety of his behavior;
- the behavior was unintentional;
or
- the behavior was justified under the circumstances.
The burden of proof to establish such a defense is on the heir by
preponderance of the evidence (unsupported testimony of the heir
alone does not suffice).
b) Grandparents' Exception
Grandparents can disinherit a grandchild on all grounds listed above whether the
offending act is against the grandparent or the parent except when a minor child
marries without the parent' s consent. La. Civ. Code art. 1 622.
c) Slight Temporal Concerns
In the major successions revision of 1 999, La. Civ. Code art. 1 62 1 and other related
articles were repealed, leaving the term, 'just cause" in La. Civ. Code art. 1 494
without any examples of what could constitute "just cause" for purposes of
disinherison of a forced heir. This was rectified in 200 1 when Act 573 (effective June
22, 200 1 ) reenacted La. Civ. Code art. 1 62 1 establishing the eight grounds listed
above. While 200 1 Act 573 attempts to make new article 1 62 1 retroactive as well as
prospective, the problem may still remain as to how to interpret and define "just
cause" as to forced heirship for a decedent who dies within the two-year gap between
July 1 999 and June 22, 200 1 .
d) Timing of Disinherison Act
Disinherison only takes effect upon death.
(1) Personal Action
Disinherison is personal. If the disinherited child dies before the testator, his
children may represent him for the forced share in the grandparent' s succession
(assuming they qualify as forced heirs).
(2) "Presumptive" Forced Heir
A person may be disinherited even though he was not a "presumptive" forced heir
at the time the act for which he is disinherited occurred. La. Civ. Code art. 1 62 3 .
Likewise, i f the person to b e disinherited does not qualify as a forced heir at the
time the decedent dies, then it is unnecessary to disinherit him.
c. Disposable Portion
The disposable portion is the remainder of the decedent' s estate left over after the forced
portion is disposed of. La. Civ. Code art. 1 495, if l . The decedent may dispose of the
disposable portion freely. If there is no forced heir, donations may be made to the whole
amount of the property of the donor, with some exceptions. La. Civ. Code art. 1497.
d. Forced Heirs
The following classes of descendants qualify as forced heirs:
1) First-Degree Descendants 23 Years of Age or Younger
Descendants of the first degree who are "twenty-three years of age or younger" qualify as
forced heirs. La. Civ. Code art. 1 493A. For purposes of article 1 493, a child is twenty
three years of age or younger until he attains the age of twenty-four years. La. Civ. Code
art. 1 493D.
2) Disabled First-Degree Descendants
Descendants of the first degree of any age who are disabled also qualify as forced heirs.
La. Civ. Code art. 1 493A. The disability must exist at the time of the decedent's death.
a) Definition of Disability for Forced Heirship Purposes
The disability may be either a physical infirmity or mental incapacity. The
impairment must be so severe that the disabled child is either permanently incapable
of taking care of his person or permanently incapable of administering his estate. See
La. Civ. Code art. 1 493A, C, & E.
(1) Permanence of Disability
1 995 Act 1 1 80 of the Louisiana legislature, implementing the state constitutional
provision on forced heirship (La. Const. art. XII, SB), did not express the
concept of "permanence" with regard to the disability. However, in the First
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Extraordinary Session of 1 996, the state legislature added the word "permanently"
to qualify that the nature of the disability should not be temporary, even if severe.
(2) The "Either/Or" Double Disjunctive
"Disability" is defined as a double "either/or" proposition. The origins of this rule
are found in the former law of interdiction, and more particularly, the rules
regarding limited interdiction. The jurisprudence in that area is sparse, and it does
not deal with the concept of "permanence" (discussed immediately above) but
may nevertheless be helpful. See generally, section XIII. INTERDICTION of the
PERSONS outline.
b) Extrapolation of Standard-Inherited, Incurable Diseases
The disability standard explained immediately above includes descendants of any age
who have an "inherited, incurable disease or condition" that may render the
descendant incapable of caring for their persons or administering their estates in the
future. La. Civ. Code art. 1 493E. This condition must exist at the time of the
decedent's death and must be supported by medical documentation. Id.
3) Grandchildren
Grandchildren qualify as forced heirs in specially designated instances, not in their own
right but by representation.
a) Predeceased First-Degree Descendants 23 Years of Age or Younger
A grandchild may represent his predeceased parent for purposes of forced heirship if
the parent would have been twenty-three years of age or younger at the time of the
decedent/grandparent' s death. La. Civ. Code art. 1 493B .
b) Disabled Grandchildren
A grandchild may also represent a predeceased parent no matter the age of the
predeceased parent at the time of the decedent/grandparent's death, if the grandchild
is disabled as discussed in A. 1 .c.2)a) & b), supra.
3. Application-Calculation of the Legitime of Forced Heir(s)
Forced heirs are customarily determined by roots, i.e. , as descendants of the first degree. La.
Civ. Code art. 1 493A. The legitime of a forced heir is determined by dividing the forced portion
by the number of descendants who qualify as forced heirs at the time of the decedent' s death.
a. Recall Specific Fractions
The forced portion is one-fourth if there is one forced heir, and one-half if there are two or
more forced heirs.
b. Greenlaw Issue
If the fraction that would otherwise be used to calculate the forced heir' s legitime is greater
than the fraction to calculate what the forced heir would be entitled to inherit under intestate
law, the legitime is reduced to the smaller fraction, i. e. , the intestate fraction. La. Civ. Code
art. 1 495, 2.
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Example: A testator has five children, only one of whom is 23 or younger; the intestate
fraction is less than the forced portion, e.g. , 20% is the intestate fraction if there are five
children, but 25% is the forced portion. Succession of Greenlaw, 1 45 La. 255, 86 So. 786
( 1 920).
1) Rights of a Forced Heir vis-a-vis Rights of an Intestate Successor
An intestate successor has no right to demand reduction or "fictitious collation" to
calculate his share. A forced heir has these rights, even if his legitime is reduced under
this rule. See IV.A.6., infra. Even if the fractions are the same, a forced heir will always
have greater rights than an intestate successor. A forced heir can demand reduction, for
example.
c. Forced Heir by Representation
Historically, a representative only counted for his portion of the forced portion of the
descendant of the first degree that he represents. See La. Civ. Code arts. 8 8 1 , et seq. That
may not be the case under the new rules.
d. Query-A Disabled Grandchild's Forced Portion
The forced portion of a disabled grandchild may differ from above. Examples:
1) Example #1-Decedent with One Predeceased Child
Suppose decedent has only one child, who predeceases him and would be 24 or older.
That child leaves two children of his own. If one grandchild is competent and the other is
disabled, is the forced portion one-fourth or one-eighth? Suppose the predeceased child's
two children are both disabled so both are now forced heirs. Is the forced portion one
fourth, which is divided between them, or is it one-half because there are two forced
heirs?
GC-2
GC- 1
GC- 1
'-
[GC-2]
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Note: The 1499 usufruct will be for the life of the surviving spouse unless the will
designates a shorter time.
2) Power over Nonconsumables
The usufructuary may be granted the power to dispose of nonconsumables, as provided in
the law of usufruct.
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a) Require v. Request
A forced heir may "request" security when a usufruct in favor of a surviving spouse
affects his legitime and he is not a child of the surviving spouse. A forced heir may
also "request" security to the extent that a surviving spouse' s usufruct over the
legitime affects separate property. La. Civ. Code art. 1 5 1 4.
Note: Article 1 5 14 does not inflexibly require security; it authorizes a forced heir to
"request" it. The usufructuary is not necessarily required to post a bond as security,
which could be onerous.
b) Judicial Remedy in Determining Security
If security is owed to the naked owner by the surviving spouse usufructuary, the court
may fashion an appropriate remedy to protect the forced heir which may include:
ordering the execution of notes, mortgages, or other documents as the court deems
necessary. Moreover, the court may impose a mortgage or lien on property
(community or separate, movable or immovable) subject to the usufruct, as security.
La. Civ. Code art. 1 5 14; La. Rev. Stat. 9: 1 202.
2. Forced Portion in Trust
The forced portion may be placed in trust. La. Civ. Code art. 1496; La. Const. art. XII, 5B.
The Trust Code in Title 9 formerly required that the income attributable to the legitime be paid to
the forced heirs at least annually but now requires only that it be distributed as necessary for the
health, education, support, and maintenance of the forced heir, considering all other sources of
income and support.
3. Survivorship Condition
A short-term survivorship condition in a will is not valid with regard to the legitime of a forced
heir unless both the forced heir and his descendants do not survive the stipulated period (not to
exceed six months). La. Civ. Code art. 1 52 1 .
C. ACTION TO REDUCE
Generally, any donation that exceeds the amount a person may dispose to the prejudice of forced
heirs may be reduced to the extent necessary to eliminate the impingement. La. Civ. Code art. 1 503 .
1 . Timing of Action
A reduction action may only be brought after the death of the donor. La. Civ. Code art. 1 504.
The action is not automatic; it must be raised by a person entitled to enforce the action.
2. Strictly Personal Action
The action to reduce is a personal claim of the forced heir. It can be brought only by a forced
heir, his successors, or an assignee of these classes whose assignment is express, conventional
and is made after the death of the decedent. La. Civ. Code art. 1 504. Since the claim is personal,
creditors of the deceased and creditors of the heir cannot require reduction of excessive
donations that impinge on the forced portion. Succession ofHenican, 248 So.2d 385 (La. App.
4th Cir. 1 97 1 ).
a. C asenote--Succession ofHurd
Because of the supremacy of federal law over state law, a trustee in bankruptcy was held to
be able to assert the personal right of the bankrupt to demand collation, which is a personal
action. In effect, the trustee in bankruptcy in this case exercised the right in place of the
forced heir. Succession ofHurd, 489 So.2d 1 029 (La. App. 1 st Cir. 1 986). Civil Code article
1 504 attempts to restrict the possibility of such an application.
b. Suggestion to Keep the Claim Personal
To protect the forced heir from his creditors, it may be safer to use a spendthrift trust.
3. Calculation of the Estate
a. Active Mass
The amount of the forced portion cannot be determined until the "active mass" is calculated.
Formula is: value(all estate property) + value(donations in the last three years) - debts =
active mass
1) Estate Property Value
First determine the value of all property left at the time of the death of the decedent
including the decedent' s full ownership of his one-half of community property. La. Civ.
Code art. 1 505A. This is called the "aggregate."
2) Value of Donations in the Last Three Years
To the aggregate, you fictitiously add the value of inter vivas donations made within
three years of the decedent's death. La. Civ. Code art. 1 505A and La. Rev. Stat. 9:2372.
a) Time of Valuation
The gift by inter vivas donation is valued at the time the gift was made, not at the
time of the decedent' s death.
b) Calculation of Years
Three years is not the preceding three calendar years but is instead the three periods
of 3 65 days, starting from the date of the decedent' s death.
3) Subtract Debts
Debts of the estate are then deducted from the aggregate amount of the above two values.
La. Civ. Code art. 1 505B.
4) Result
The result of the above computations is the "active mass."
5) Calculating the Legitime
The legitime of each forced heir is then calculated by applying the proper fraction to the
active mass result. La. Civ. Code art. 1 505B.
b. Items Excluded
The following items are generally excluded from the calculation above.
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4. Order of Reduction
a. Mortis Causa Gifts Reduced First
All donations mortis causa are reduced first. La. Civ. Code art. 1 507.
1) Designating Order of Reduction
A testator may expressly designate the order of reduction in a will; that is to say, he may
declare a preferred legacy shall be paid in preference to others. In that case, the legacy
will not be reduced until the other legacies are exhausted.
2) If No Designation
In the absence of a designation by the testator, among the legatees, particular legacies
have preference over universal legacies if there are enough assets in the probate estate to
satisfy the legitime.
b. Once Probate Exhausted, then Inter Vivos Donations
Once the probate estate has been exhausted, the inter vivas donations are then reduced. La.
Civ. Code art. 1 508. This reduction is a return of the property to the estate, but the donee can
elect to pay instead.
1) Order-Most Recent Inter Vivos Donations First
The most recent gift is reduced first. La. Civ. Code art. 1 508. That is to say, the donee of
the most recent gift is required to return or pay first and then the process proceeds
successively to the more remote gifts (i.e. , the donee of the next most recent gift, and so
on until the forced portion is satisfied).
Note: The reduction of inter vivas donations does not go beyond gifts made within three
years of the date of the decedent's death. La. Rev. Stat. 9:2372.
a) Exception to Order of Reduction-the Insolvent Donee
A forced heir can skip over an insolvent donee in the order of reduction addressed
above under IV.C.4.b . 1 ) and claim his legitime from the next preceding donee's
donation(s) and so on to the donee of the most remote donation. La. Civ. Code art.
1 509. If the donee from whom the forced heir claims pays the share of the insolvent
donee, the paying donee is subrogated to the rights of the forced heir against the
insolvent donee. Id.
5. Donee' s Options-Return or Take Less
When the donated property is owned by the donee or his successors by gratuitous title, the owner
may elect to return it or take less from the donor' s succession. La. Civ. Code art. 1 5 1 3 . The
donee' s election rights may be limited depending on whether the property is no longer in the
hands of the donee or if it has been encumbered with real rights.
a. Property no Longer Owned by Donee
If the property has been alienated by the donee, the donee must return the value the property
had at the time the donee received it from the donor. La. Civ. Code art. 1 5 1 3 .
b. If Property Encumbered
If the property has become encumbered by real rights, the donee is accountable for the
property's diminution in value as a result of the encumbrance. La. Civ. Code art. 1 5 1 3 .
c. Destroyed or Diminished Property
If the donee still owns the property, and it is diminished in value or destroyed, whether by
accident or due to the fault of the donee, the value (to the extent of the diminution) is used if
the donee elects to return the property, but in any event the donee is accountable for the value
of the property at the time of the gift.
d. Fruits and Products
Fruits and products (e.g. , dividends or mineral royalties) derived from the donated property
after the decedent' s death must be returned but only after written demand is made on the
donee. Fruits and products are restored from the day of written demand, Those fruits and
products received before such demand belong to the donee. La. Civ. Code art. 1 5 1 2 .
1) "Demand" i n this Context
The donee keeps all fruits and products that accrue before the donor's death because, as a
general matter, a demand for reduction cannot be made until after the donor has died.
The "demand" addressed in article 1 5 1 2 is not necessarily a judicial demand, as in an
action to reduce excessive donations, but any written demand. La. Civ. Code art. 1 5 1 2,
cmt. b.
e. Improvements to the Donated Property
The donee does not get credit for the cost of improvements, since the value is the date of gift.
D. HISTORICAL TRACKING OF THE LAW OF FORCED HEIRSHIP: GENERALLY
The right to claim as a forced heir is governed by the law in force at the time of the death of the
decedent. La. Civ. Code art. 870B. The exam may present a decedent who dies in the relatively
distant past, so it is necessary to briefly present the historical developments of who could be
classified as a forced heir. Consider also the volatility of the law of forced heirship in the 1 990s, and
the presentation below becomes all the more warranted.
1 . Forced Heirship before 1982
a. Forced Portion
The forced portions were as follows: one child, one-third; two children, one-half; three or
more children, two-thirds.
b. Who Were Forced Heirs
If the child predeceased the decedent, his children (the decedent's grandchildren) represented
him, but the number of grandchildren did not alter the fraction of the forced portion.
1) Parents as Forced Heirs
Parents were forced heirs if no children survived the decedent - before 1 979, as to both
separate and community property, and after 1 979, only as to separate property.
Note: The exact language was "desendants [sic] of any age who, because of mental
incapacity or physical infirmity, are incapable of taking care of their persons or
administering their estates." Article 1 493 as enacted by Act 1 1 80 did not limit
descendants to descendants of the first degree. Did descendants therefore include
grandchildren, who otherwise might have been excluded?
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3) Grandchildren
Grandchildren, but (assuming the disability exception above applied only to children)
only those grandchildren whose parent (the decedent' s child) is deceased and would not
have "attained the age of twenty-three years" (not twenty-four) at the time of the
decedent's death. Note the discrepancy between the ages required for being a forced heir
in one's own right and being a forced heir by representation.
5. Forced Heirship since June 18, 1996
Act 77 of the First Extraordinary Session of the Louisiana State Legislature in 1 996 (effective
June 1 8, 1 996) replaced and entirely superseded 1 995 Act 1 1 80. The discussion of the
substantive provisions of forced heirship presented above under IV.A. are those enacted under
Act 77 as amended slightly.
V. COLLATION
A. DEFINITION AND GENERAL PRINCIPLES
1. Generally
Collation is the supposed or real return of goods to the mass of a succession that an heir makes of
property that the heir received in advance of his share of the succession. The return is done so
that such property received by that heir may be divided together with the other effects of the
succession. La. Civ. Code art. 1 227. When a parent favors a particular child with various gifts
during the parent' s lifetime, the child should return the property or its equivalent to the parent' s
succession to be distributed among all o f the children. The process o f the return o f the property
is referred to as collation.
a. Always Presumed
Collation is presumed unless it has been expressly forbidden (or "waived," see infra under
V.A.2.). La. Civ. Code art. 1230.
b. Distinguishing between "Real" and "Fictitious" Collation
"Real" collation (as opposed to the "fictitious" collation used simply to add values to
calculate the "active mass" for forced heirship) is based on a presumption that the decedent
means to treat all children equally and that what he or she gives to one of them prior to death
is only an advance. Collation does not require an impingement of the legitime. The concept
is similar to the common law rule of advancements.
2. Waiver of Collation
Collation can be waived: the decedent (donor) may stipulate that what he gave was intended as
an extra portion and need not be collated.
a. Unequivocal Language
The language dispensing with collation must be unequivocal. La. Civ. Code art. 1 23 3 .
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b. Where Stipulation of Waiver Can Be Made La. Civ. Code art. 1 232.
1) In Act Itself
The stipulation may be made in the act of disposition itself (i. e. , in the donation inter
vivos itself).
2) In A Subsequent Authentic Act
The waiver of collation can also be made subsequently in an act before a notary and two
witnesses (an authentic act).
3) Dispensation Made by a Will
Dispensation may be made in a will, and may dispense collation as to gifts made before
and after the date of the will.
a) Query
What is the effect of a subsequent revocation of the will?
b) Succession ofFakier
Simply leaving the disposable portion to the heir from whom collation is demanded
does not evidence a dispensation from collation. Succession ofFakier, 541 So. 2d
1 372 (La. 1 988).
B. APPLICATION
1 . Claimant's Required Status-Who May Demand
The claimant demanding collation must be a descendant of the first degree
(of the decedent) who qualifies as a forced heir at the time of the decedent' s death. La. Civ. Code
art. 1 235.
a. Grandchild Inheriting by Representation
If a grandchild inherits by "representation" (even though he personally is not a "descendant
of the first degree"), he may nonetheless be able to demand collation for gifts given to other
children, since he stands "in the place and degree" of the parent he represents. See La. Civ.
Code art. 88 1 .
Note: The revision comment (comment c) to Article 1 235 says that grandchildren cannot
demand collation, because that was the intention of the drafters of the rule. The language of
1 235 was intended to confine the right to actual descendants of the first degree. However,
there is no case. on point; it is arguable that, by virtue of Article 8 8 1 , the drafters of 1 235 did
not accomplish this goal, because the grandchild stands in "the degree" of his predeceased
parent.
b. Not a Forced Heir-Cannot Demand Collation
If a child has attained the age of 24, and is not disabled, he cannot demand collation.
2. To Whom Is It Due?
The collation action is made only to the succession of the donor-decedent. La. Civ. Code art.
1 242.
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Example: Grandpa Jack makes an inter vivas donation to Sam, his grandchild after the death
of Sam ' s father (Jack' s son). Sam was a presumptive heir (i. e. , appeared "in the quality" of
an heir) of Jack at the time of the gift since Sam ' s father was deceased at the time of the gift.
Therefore, Sam was a presumptive heir of Jack by representation at that time, and Sam would
be required to collate the gift made by Jack if demanded to do so.
1) If Heir Holding Property Subject to Collation Renounces
The collation rules provide that a child may avoid the duty of collating property by
renouncing the succession. La. Civ. Code art. 1 237. One legal issue is whether or not the
heir has validly renounced the succession so as to not be obligated to collate under article
1 237. Ref Section of this outline (renunciation must be express and in writing) concerning
renunciation.
b. When Grandchildren Are Not Required to Collate
Gifts made to a grandchild by his grandparent during the life ofthe parent (i.e. , a grandchild
not appearing in the quality of an heir) are always considered exempt from collation.
Grandchildren in these cases are expressly exempted by the Civil Code. La. Civ. Code art.
1 239A.
Note: Therefore, if Sam ' s father had been living, in the example above, at the time of the gift
from Jack to Sam, then Sam would not have been a presumptive heir of Jack at the time of
the gift, and Sam would not be required to collate his gift from Jack.
C . PROCEDURE -HOW COLLATIONS ARE MADE
Collations are made in kind or by taking less from the decedent' s succession. La. Civ. Code art.
1 25 1 . Collating in kind or taking less is determined by whether the things subject to collation are
immovable or movable. La. Civ. Code art. 1 254. For both immovables and movables, valuation is
determined at time of donation. See La. Civ. Code art. 1 235.
1 . General Definitions
a. In Kind
Collation is made in kind when the thing that has been given is delivered up by the donee to
rejoin the "mass of the succession" of the donor. La. Civ. Code art. 1 252.
b. Taking Less
Collation is made by taking less when the donee diminishes the portion he inherits, in
proportion to the value of the object that has been donated to him, and he takes that much
less from the donor' s succession. La. Civ. Code art. 1253.
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or
Example: a purported sale in which the vendor actually remains the owner. Placing title
in someone else' s name as a purported sale of property, solely to avoid creditors, is a
classic example of a simulation.
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2) Relative
The parties intend that the contract produce an effect different from the effect recited in
the contract. Example: a donation disguised as a sale.
2. Effect and Relationship to Collation
a. Attacking Absolute Simulations
Heirs can attack absolute simulations. Since title is not transferred, there is no need to
collate.
b. Limitations of Action to Declare Simulation
The action to declare a simulation is not limited to protecting the legitime. It is an absolute
nullity and the entire property is brought back to the succession.
3. Proof of Simulation
a. Difficulty
It is difficult to prove a simulation.
b. Generally
As a general rule testimonial or other evidence cannot be used to negate or vary the contents
of an authentic act or an act under private signature. If it is in the "interests ofjustice," such
evidence can be introduced to prove a simulation. La. Civ. Code art. 1 848.
c. Simulations and Third Party Reliance
Simulations cannot be attacked, however, as to a third party who has relied on the public
records.
4. Distinction from Disguised Donations
The following transactions resemble simulations, but are not:
a. Donation in Disguise
A sale of immovable property made by parents to their children where no purchase price has
been paid or where the consideration paid was less than one-fourth of the real value of the
property. La. Civ. Code art. 2444.
1) Distinction
Unlike an absolute simulation, title is transferred. Even if the disguised donation is in the
proper form for a donation, it can be attacked.
2) Note
Cross-reference the formalities required for onerous donations.
b. Advantage Bestowed
If a parent has sold a thing to his child at a low price, or has bought something for the child,
or has spent money to improve the child's estate, this is an "advantage" that is subject to
collation even though it is technically not a donation or is an indirect one. La. Civ. Code art.
1 248.
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1) Real Collation
This is subject to real collation.
2) Determination of "Advantage"
The advantage (part donation) is determined from what the property could have brought
at the time of the sale to the child. Exception: A low cash consideration with the excess
paid by services to the donor may be a valid sale.
F. PRESCRIPTIVE PERIODS
1 . Action t o Reduce (La. Civ. Code art. 3497)
a. Inter Vivos Gifts
For inter vivos gifts, five years from the death of the donor.
b. Mortis Causa Gifts
For mortis causa gifts, five years from the date of probate of the will.
2. Collation
Ten years from the date of death, unless the heir has participated in the succession and a
judgment of possession has been rendered, which will bar the action. See La. Civ. Code art.
3499.
3. Action to Declare a Simulation
The action to declare a simulation is imprescriptible.
ba
c. Remunerative
A "remunerative" donation is a "gift" and is meant to compensate the donee for services
rendered.
2. Relevance of Classification - Two-Thirds Rule, Form
The rules as to form governing gratuitous inter vivas donations do not apply to those obligations
once referred to as onerous and remunerative donations. The revision of the law of donations
inter vivas clearly expresses this rule in the first part of the chapter.
a. Generally
Generally, the two-thirds rule works this way: the value of the services rendered by the donee
or the cost of the charges imposed by the donor must be equal to or greater than two-thirds of
the value of the gift or the rules ofform governing gratuitous inter vivos donations will be
applicable. Rules as to form are discussed in detail infra at VIII.D.
b. "Onerous" Donations
The rules concerning fonn do not apply to a donation that is burdened with an obligation
imposed on the donee that gives a material advantage to the donor, unless the cost of
performing the obligation is less than two-thirds of the value of the donated thing valued at
the time of donation. La. Civ. Code art. 1 526.
c. "Remunerative" Donations
These rules of form also do not apply to a donation that is made to recompense for services
rendered that are susceptible of being measured in money unless the value of those services
is less than two-thirds of the value of the donated thing valued at the time of donation. La.
Civ. Code art. 1 527.
C. GENERAL REQUIREMENTS
There are some substantive requirements to have a valid gift, even if the all-important form is
proper.
1. Donative Intent
Donative intent is needed in addition to the requisite formalities.
2. lrrevocability
A donation must be irrevocable. However, there are significant exceptions to this general rule;
see discussion infra under VIII.F. for exceptions.
3. Present Property
The donor may only donate present property. If a donation attempts to include future property,
the portion of the donation that concerns future property is null. La. Civ. Code art. 1 529.
4. Conditions
Generally, the donor may impose charges or lawful conditions that are not "contrary to good
morals" on the donee as he pleases with some exceptions. La. Civ. Code art. 1 528. These
permissible conditions do not necessarily make the donation onerous. The effect of
nonfulfillment or nonperformance of conditions is explained infra at VIII.F.3. (Dissolution).
a. Donor's Wm
A donation inter vivas conditioned on the donor's will is null. La. Civ. Code art. 1 530.
b. Payment of Future or Unexpressed Debts
A donation inter vivas conditioned on paying debts and charges other than those existing at
the time of the donation is also null unless these debts and charges are expressed in the act of
donation. La. Civ. Code art. 1 53 1 .
c. Right of Return
1) Permissible Stipulation
The donor is allowed to stipulate a right of return of the donated property should he
survive the donee only, or if he survives the donee's descendants. La. Civ. Code art.
1 532.
Example: I give my mother's wedding ring to you, but if you die before me, it shall
return to me.
2) Effect of Return and Exception - When the Donor Gets the Property Back
If stipulated, the donated thing returns to the donor free of any alienation, lease or
encumbrance made by the donee or his successors after the donation took place.
Exception: a transferee of the donee who acquires the donated thing for value and in
good faith is not obligated to the original donor. The donor's recourse in that situation is
to recover damages for his loss from the donee and the donee's successors by gratuitous
title. La. Civ. Code art. 1 533.
d. Not Applicable to Marriage Donations
The exceptions above, including the restriction on donating future property, are not
applicable to donations in the marriage context, explained at VIII.G., infra.
D. FORM RULES
Generally, a donation inter vivas must be made by authentic act or it is an absolute nullity. La. Civ.
Code art. 1 54 1 . There are several very important exceptions based on the classification of prope1iy
involved under D.3 ., infra.
1 . Required Contents of the Act of Donation
The act of donation shall identify the donor and the donee, and must contain an adequate
description of the thing donated. These requirements are satisfied if the identities and
description are either contained in the act of donation itself or are reasonably ascertainable from
information contained in the act. Extrinsic evidence can be used to clarify an identification or
description where necessary. La. Civ. Code art. 1 542.
Note: The "reasonably ascertainable" standard is borrowed from the rule in La. Civ. Code art.
1 575 concerning dates on olographic testaments.
2. Confirmation
A donation inter vivas that is null for lack of proper form may, however, be confirmed by the
donor. This confirmation must be in the form required for a donation and is retroactive to the
date of the original invalid donation. La. Civ. Code art. 1 845 .
3. Form vis-a-vis Classifications of Property Donated
Generally, an inter vivas donation of an immovable or an incorporeal movable must be made by
authentic act; there are exceptions spelled out below. A donation of a corporeal movable can be
effectuated by more relaxed rules.
a. Immovables
When the donation inter vivas affects an immovable, or a real right thereto (for example, the
gift of a usufruct), the act of donation, as well as the act of acceptance (whether in the same
or a separate act), must be filed for registry in the conveyance records in the parish in which
the immovable is located to affect third parties. See La. Civ. Code art. 3338.
b. Movables
1) Corporeal Movables - the Manual Gift
A gift of a corporeal movable can be by manual delivery without any further formality, or
it may be made by authentic act (in which case delivery is not necessary). La. Civ. Code
art. 1543.
2) Incorporeal Movables
a) Generally
The donation (or acceptance) of certain incorporeal movables such as those evidenced
by a certificate, document, instrument, or other writing, and made transferable by
endorsement or delivery, may be made by authentic act or in accordance with the
rules particular to the specific type of incorporeal movable involved. La. Civ. Code
art. 1 550, if l .
i) Negotiable and Non-Negotiable Instruments
Negotiable and non-negotiable instruments (e.g. , promissory notes) may be
donated validly in accordance with the rules of Louisiana' s commercial laws in
Title 1 0. La. Rev. Stat. 1 0:3-203(b).
ii) Stock Certificates
Stocks in certificate form, whether publicly traded or closely held, are covered
and their donation and acceptance comport with the rule in article 1 550;
remember that transfer alone is not enough: donative intent is always required.
iii) Checks
If intended to give the money represented by the check to the payee, a gift of a
check is not a completed gift until the check has been cashed, since payment can
be stopped. A gift of a check itself(e.g. , A gives B ' s check to C), however, is
complete without cashing.
Delivery of a certified check is complete upon receipt and valid under article
1 550 since the funds for such an instrument are already set aside in the bank and
cashing is not necessary.
iv) Passbooks
Passbooks are usually deemed incorporeal, thus needing an authentic act for a
valid donation inter vivas. A bank account opened in the name of another person
is not a completed gift if the "donor" retains the right of withdrawal. Opening an
"or" account (e.g. , in names of "A or B") is not a gift. If A opens the account
with his funds and B draws out the funds, B has the burden of proof by "strong
and convincing" evidence to show that A intended a gift to B. Instead of using an
authentic act, the donor may withdraw the money and deliver it manually.
v) Bearer Bonds
A United States "bearer" bond is donated by manual delivery and is covered.
However, other "bearer" bonds formerly required an authentic act; now they may
be donated under commercial laws regarding instruments.
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When the donation is effective (upon acceptance), ownership or "other real right" (e.g. , gift of a
usufruct by donor A to donee B) in the donated thing is transferred to the donee. La. Civ. Code art.
1 55 1 .
1 . When - Date o f Acceptance, Effectiveness
The acceptance must be made during the lifetime of the donor. La. Civ. Code art. 1 544, 411 1 . The
donation must also be accepted during the lifetime of the donee; if the donee dies before
acceptance, his successors cannot accept for him. La. Civ. Code art. 1 546.
2. How - Methods of Acceptance
a. In Act of Donation or Subsequently
Acceptance may be made in the act of donation or by a "subsequent" act in writing. La. Civ.
Code art. 1 544, 4112 . The acceptance does not have to be in authentic form, just in writing.
The previous rule required that a subsequent acceptance also be by authentic act, but the
revision relaxes the rule to be that a simple writing suffices.
Note: The Louisiana Supreme Court upheld a gift where the donees accepted the gift a day
before the donors signed the act of donation. See Tweedel v. Brasseaux, 433 So.2d 133 (La.
1 983). The comments to the revision state that the new law is not intended to change that
result.
b. Movable - Donee in Possession
A donation of a movable is also accepted and has full effect if the donee has been put into
corporeal possession by the donor (i. e. , completion of the manual gift). La. Civ. Code art.
1 544, 41f3.
c. Immovable - Subsequent Alienation or Encumbrance by Donee
A subsequent alienation or encumbrance of an immovable by the donee shall be considered
an act of acceptance and is effective against third parties upon recordation of any act or other
document which alienates or encumbers the property, regardless of form, filed in the parish
in which the immovable is located. La. Rev. Stat. 9:237 1 .
d. With All Existing Charges
The donee takes the donated thing subject to all of its charges, even those that the donor
imposes in the time frame between the time of donation and the time of acceptance. La. Civ.
Code art. 1549.
3. By Whom
The general rule is that a donee must accept a donation personally, but there are exceptions
(spelled out below).
a. Acceptance Prohibited by Donee's Successors
If the donee dies before accepting the donation, his successors may not accept for him. La.
Civ. Code art. 1 546.
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b. Acceptance by Mandatary
If delivery is made to an agent or mandatary, the gift is complete if the mandatary is the
donee's mandatary and the acceptance of the donation is within the scope of the mandate.
La. Civ. Code art. 1 545.
c. Acceptance by Minors
A donation to an unemancipated minor may be accepted by the minor' s parent or other
ascendant of the minor, or by his tutor, even if the person accepting is also the donor. La.
Civ. Code art. 1 548.
d. No Acceptance by Donee's Creditors
The donee' s creditors may not accept the donation for him if the donee refuses or neglects to
accept the donation. La. Civ. Code art. 1 547. Note that this is not the same rule as for
successions.
F. REVOCATION AND DISSOLUTION
Donations inter vivas are generally irrevocable with certain exceptions. Watch the terminology: the
revision of the law of donations inter vivas makes a clear distinction between revocation and
dissolution. The only ground for revocation is ingratitude, and the grounds for such are specifically
defined (see infra). Dissolution, on the other hand, may be for any number of reasons; for some of
those reasons, there must be a lawsuit filed Gudicial dissolution) or consent of the parties, but in
others, dissolution is automatic (of right).
1. Generally
A donation inter vivas may be revoked because of ingratitude of the donee. A donation may be
dissolved for the nonfulfillment of a suspensive condition or the occurrence of a resolutory
condition. A donation may also be dissolved for the nonperformance of other conditions or
charges. La. Civ. Code art. 1 556.
2. Revocation Based on Ingratitude of the Donee
a. Grounds
The grounds for revocation are limited. Revocation based on ingratitude of the donee occurs
only in the following two cases: where the donee has attempted to take the life of the donor,
or where the donee is guilty of cruel treatment, crimes or grievous injuries toward the donor.
La. Civ. Code art. 1 557. Formerly, there was a third ground, refusing the donor food when in
distress, but it has been removed as unnecessary.
1) Killing Donor
Donee tries to kill or actually does kill the donor.
2) Cruel Treatment, Etc.
The donee is guilty of cruel treatment, or guilty of crimes or grievous injury to the donor.
a) Jurisprudential Example #1
"Grievous injury" sufficient to revoke a donation has been defined by Louisiana
jurisprudence as any act "naturally offensive" to the donor. Perry v. Perry, 507 So.2d
8 8 1 (La. App. 4th Cir. 1 987).
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b) Jurisprudential Example #2
Cruel treatment or grievous injury sufficient to revoke a donation may include
adultery by a spouse; filing suit against a parent falsely alleging criminal activity; and
slandering the memory of the donor. See, for example, Perry v. Perry, 507 So.2d 8 8 1
(La. App. 4th Cir. 1 987); Spruiell v. Ludwig, 568 So.2d 1 33 (La. App. 5 th Cir. 1 990);
Sanders v. Sanders, 768 So.2d 739 (La. App. 2d Cir. 2000).
b. Prescription
The action to revoke based on ingratitude must be brought within one year from the date the
donor knew or should have known of the act of ingratitude. La. Civ. Code art. 1 558, ifl .
Previously, the action had to be brought within one year from the day of the act of ingratitude
or from the day the act was made known to the donor.
c. Proper Parties
Generally, only the donor may have a donation revoked for ingratitude, but if he dies after
having already commenced an action to revoke and then dies, his successors may continue it.
1) Donor's Successors as Plaintiffs
If the donor dies before the prescriptive period explained in F.2.b. supra accrues, the
action may be brought by his successors, but only within the time remaining in the one
year period. If the donor died without knowing or having reason to know of the act of
ingratitude, then the successors have one year from the death of the donor to file the
action. La. Civ. Code art. 1 558, if2.
2) Donee's Successors as Defendants
If the donee is deceased, the action for revocation may be brought against the donee's
successors. La. Civ. Code art. 1 55 8, if4. Previously, a revocation action could not be
brought by the donor "against the heirs of the donee." Former La. Civ. Code art. 1 56 1 .
d. Effect of Revocation
1) Alienations or Encumbrances by Donee
a) Before Action Is Filed
Revocation for ingratitude does not affect an alienation, lease or encumbrance made
by the donee before the action to revoke is filed. This is simply a restatement of the
previous rule.
b) After Action Is Filed
i) Movables
If an alienation, lease or encumbrance of a movable is made after the filing of
the action to revoke, the alienation, lease or encumbrance is effective against
the donor only when it is an onerous transaction made in good faith by the
transferee, lessee or creditor.
ii) Immovables
When an alienation, lease or encumbrance of an immovable is made after the
filing of the action to revoke, the effect of the action to revoke is governed by
the law ofregistry.
Note: The grounds for ingratitude, unlike conditions or charges, will not
appear in the act of donation or in the public records, so this rule means that a
donor who files an action to revoke a donation of immovable property should
file a notice of lis pendens in the public records in order to affect third parties.
This rule is meant to protect good faith transferees who can rely on the
absence of a notice of lis pendens in the public records.
2) Restoration
If the action to revoke based on ingratitude is successful, as a general rule the donee must
return the thing donated as well as the fruits and products of it. La. Civ. Code arts. 1 560,
1 566. The change from the old law here is that the donee is not given the option of
returning the thing or tendering its value to the donor; he must return the thing if possible.
a) Donee Unable to Return Donated Property
If the donee is not able to return the actual thing, the donee must restore the value of
the donated thing, measured at the time the action to revoke is filed. La. Civ. Code
art. 1 560.
3. Dissolution of an Inter Vivos Donation - Conditions
Donations can be permissibly subject to conditions which may be suspensive (e.g., a gift in
contemplation of a marriage) or resolutory ( e g a gift of land to be used and maintained as a
public market place). The nonfulfillment or nonoccurrence of these conditions, respectively, can
dissolve a donation inter vivos.
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charge s or fulfill his obligations or ceases to do so. La. Civ. Code art. 1 564. The former rule
seemed to point to the general Code article for personal actions of ten-year liberative
prescription. See generally La. Civ. Code art. 3499.
e. Effect of Dissolution of Donation for Non-Fulfillment of Conditions
1) Immovables
If a donation of an immovable is dissolved for the non-fulfillment of a condition, the
immovable must be returned even if the donee has alienated it by onerous title (subject to
the laws of registry). If the thing cannot be returned free from third-party rights, the
donor may still accept the thing and the donee is liable for any diminution in value. In
the absence of return of the actual thing or return of the thing in impaired condition, the
donee must restore the value of the donated thing measured at the time the action to
dissolve is filed. La. Civ. Code art. 1 565, ifl .
2) Movables
If a donation of a movable is dissolved for the non-fulfillment of a condition, an
alienation, lease or encumbrance by the donee or his successors is effective against the
donor only when it is by onerous title made in good faith by the transferee, lessee, or
creditor. La. Civ. Code art. 1 565, if2.
3) Fruits and Products
When a donation is dissolved, the donee or his successor must restore (or pay the value
of) the fruits and products of the donated thing from the date of written demand. Further,
when the action is for dissolution based on nonperformance of a condition, the court has
discretion as to when to order or value the restoration if the failure is due to the donee's
fault (i.e. , the court may order return of fruits and products from an earlier date than
written demand if the conditions imposed by the donor were not fulfilled due to the
donee's fault). La. Civ. Code art. 1 566.
4. Condition of Returned Property
If the donee (or his successors) is obligated to return a thing and cannot do so in essentially the
same condition it was in at the time of the donation, the donor may choose to receive the thing in
its present condition and require its return and in that case hold the donee liable for any
diminution in value at the time of the delivery. La. Civ. Code art. 1 567.
5. Nuance in Civil Code Ancillaries - Donations to a Spouse
Note that donations inter vivas to a spouse can be made revocable if the donation is by authentic
act and the right of revocation is expressly reserved. La. Rev. Stat. 9:235 1 .
G. DONATIONS INTER VIVOS IN THE MARRIAGE CONTEXT
a. Formalities
The gift shall be made by a single instrument in authentic form expressly stating that the
donor makes the gift in contemplation of marriage. It shall be signed at the same time and
place by the donor and by both prospective spouses. La. Civ. Code art. 1 735.
b. Subject to Suspensive Condition
The donation shall be conditioned suspensively on the prospective marriage actually taking
place. La. Civ. Code art. 1 736.
c. Beneficiaries
1) Present Property
The donor may donate any of his present property to one or both of the spouses under
these rules, but not to their common descendants, whether already born or yet to be born.
La. Civ. Code art. 1 737.
2) Property to be Left at Death
The donor may donate all or any of the property he will leave at his death ( 1 ) to one or
both of the prospective spouses or (2) to one or both of the spouses and if they (or one if
donating only to one spouse) cannot take (predecease the donor, or renounce or are
declared unworthy after succession opened), to their common descendants. In either case
there is a presumption that the donor intended to donate to the spouses' common
descendants, even if they are not mentioned in the act of donation. La. Civ. Code art.
1 738.
d. Other Rules Applicable
Other general rules as to revocation, representation (substitution of spouses' common
descendants here), accretion/legacy lapse, acceptance and renunciation and payment of estate
debts as presented above are applicable in this context.
2. Interspousal Donations Inter Vivos
A person can make a donation inter vivas to his future or present spouse in contemplation or in
consideration of their marriage. The rules specific to this type of act are suppletive to the general
rules of donations inter vivas (and include the rules as to donations inter vivas in contemplation
of a prospective marriage, respective differences considered - most are alike though). If a
particular donation does not comply with the rules of interspousal donations inter vivas, it is not
necessarily null, but will be subject to the general rules on inter vivas donations. La. Civ. Code
arts. 1 744, 1 745 .
a. Objects and Beneficiaries
The donor may donate any of his present property or all or any of the property he has at death
to the donor' s future or present spouse under these rules, not to their common descendants
whether already born or yet to be born. La. Civ. Code art. 1 746.
b. Right of Return not Presumed
If present property, it is presumed not to have been made subject to the resolutory condition
that the donor survive the donee and his descendants. La. Civ. Code art. 1 748.
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