Prohibited Substitutions in Louisiana Wills

What Is a Prohibited Substitution?

A prohibited substitution occurs when a testator leaves a specific piece of property to one person with instructions for that person to keep and maintain the property and then leave it to another specific individual upon death. You’re not allowed to give a first person full ownership of something and then require that person to deliver it to a second person after the first person’s death.

For example, it would be a prohibited substitution if in your mother’s will, she leaves her vacation home to her brother with instructions that the vacation home be kept in good repair and owned by the brother until the brother’s death and goes on to state that the brother must leave the vacation home to you in his will.

While your mother’s goal could not be legally achieved in her will, she could have used other estate planning tools, such as a trust, to allow her brother to use the home for his lifetime and then pass the vacation home to you. However, if other estate planning tools were not used, you need to know what happens to the prohibited substitution in your mother’s will.

When a Will Contains a Prohibited Substitution

Prohibited substitutions are null and void. It is as if the bequest was never made. In the previous example, neither your mother’s brother (the institute) nor you (the substitute) will receive the vacation home according to the specific bequest. Instead, the property will pass according to the other provisions in the will.

Do I Need an Estate Litigation Lawyer?

If you believe a will contains a prohibited substitution or if another heir or legatee claims that there is a prohibited substitution that may impact your inheritance, you need to talk to an experienced Louisiana estate litigation lawyer.

What Is a Prohibited Substitution Under Louisiana Law

Louisiana Civil Code article 1520 prohibits fideicommissary substitutions in wills. A fideicommissary substitution occurs when a testator leaves property to one person (the first legatee) and instructs that person to preserve and transmit the property to a second person (the second legatee) upon the first legatee’s death. The classic example: “I leave my home to my son, and when he dies, he must leave it to his children.” Louisiana voids this type of arrangement because it creates a perpetual restriction on ownership that conflicts with the state’s policy favoring free alienability of property.

What exactly is prohibited is the combination of two elements: a duty to preserve and a duty to transmit. If the first legatee is free to use, sell, or dispose of the property during their lifetime without any obligation to preserve it for a second beneficiary, that is not a fideicommissary substitution — it is simply a conditional or limited legacy. Similarly, a provision naming a substitute legatee who takes only if the primary legatee predeceases the testator is perfectly valid. The prohibition applies when the first legatee must hold onto the property and pass it along, as if they were a trustee rather than an owner.

The courts apply this rule strictly. Sympathetic facts or clear testamentary intent to benefit grandchildren do not save a prohibited substitution. If the will contains language — however well-intentioned — that imposes a dual obligation to preserve and transmit, Louisiana courts will void the restriction. The first legatee keeps the property free and clear of any duty to pass it to the named second legatee.

What Testators Can Do Instead: Trusts and Valid Conditional Legacies

A testamentary trust is the legally valid way to accomplish what a fideicommissary substitution attempts. In a trust, the trustee holds legal title to the property and manages it for the benefit of successive beneficiaries — income to a surviving spouse during their lifetime, then principal to the children at the spouse’s death, for example. Because the beneficiaries hold equitable interests rather than outright ownership, the policy concern about restricting alienability does not apply in the same way. Louisiana’s Trust Code (La. R.S. 9:1721 et seq.) expressly authorizes these arrangements.

Testamentary trusts for minor children are another common and valid use case. Rather than leaving property directly to children who may be too young to manage it, a will creates a trust that holds the inheritance until the children reach a specified age. The trustee — often a family member, trust company, or attorney — manages the assets and makes distributions for the children’s education, health, and support in the interim. This is entirely different from a prohibited substitution because the beneficiaries are the same people (the children), not two successive groups.

A conditional legacy — leaving property to one person with the condition that if the first legatee dies before a certain event occurs, a second legatee takes — is also valid. “To my daughter, but if she predeceases me, then to her children” is a valid substitution because the second legatee only takes if the first never had the property at all. The prohibition in article 1520 is not about naming backup beneficiaries; it is about requiring the first beneficiary to hold and pass along property they have already received.

What Happens When a Court Finds a Prohibited Substitution

Under Louisiana Civil Code article 1520, when a will contains a prohibited fideicommissary substitution, the first legacy stands and the substitution itself is void. The first legatee takes the property as an outright owner, free of any duty to preserve or transmit. The second legatee — the intended ultimate recipient — receives nothing from that particular disposition, regardless of the testator’s intent.

If the testator’s primary purpose was clearly to benefit the second generation rather than the first, the result can be dramatically contrary to what was intended. A parent who wanted grandchildren to ultimately receive the family home may end up leaving it entirely to their child, who has no legal obligation to pass it along. This is why estate planning that involves multi-generational transfers requires careful drafting — and why a trust, not a will substitution, is the correct vehicle for this goal.

In practice, courts may also sever the void substitution while leaving the rest of the will intact. A will that contains both valid legacies and a prohibited substitution does not become entirely invalid — only the offending clause is stricken. Heirs and potential beneficiaries challenging a will on this basis must identify the specific clause that violates article 1520 and demonstrate that it meets both elements of the prohibition: the duty to preserve and the duty to transmit.

Our attorneys will review the entire will and advise you of your legal options, so you can be confident that your rights are protected. Please contact us today to get started on your case.