Capacity to Inherit in Louisiana

A potential heir needs to meet only one qualification to inherit property in a Louisiana succession: the heir must exist at the time of the decedent’s death.

What Does It Mean to “Exist”?

Anyone living at the time of the decedent’s death exists. In most cases, this is a straightforward standard. Disputes most commonly arise over unborn children or children conceived through assisted reproductive technology after a parent’s death.

According to Louisiana law, a child conceived by the decedent before death who is later born alive is considered to have existed at the time of the decedent’s death and may inherit property from the estate.

Louisiana law also allows some children conceived after the death of a parent to inherit property. These cases are limited. If no law exists to the contrary, a child conceived after the death of the parent has the capacity to inherit if:

• The decedent provided written authorization to the surviving spouse that allowed the spouse to use the decedent’s gametes, and
• The child is born to the surviving spouse within three years of the decedent’s death.

Three Things That Will Not Prevent an Inheritance

The word “capacity” may confuse the issue. Age, mental capacity, and disability may interfere with a person’s ability to understand or manage their own inheritance, but these things will not prevent a person from inheriting property in a Louisiana succession. A minor child inherits through a legal guardian; a person who lacks mental capacity inherits through a curator or other legal representative.

Unworthiness to Inherit

Separately from the capacity to exist, Louisiana law provides that a person who is otherwise capable of inheriting can be declared unworthy to inherit in specific circumstances — primarily involving serious crimes against the decedent. Unworthiness is a legal declaration that goes beyond mere family conflict and requires court proceedings to establish.

Make Sure the Right Heirs Inherit the Right Property

Whether you are an executor, administrator, heir, or representative of a child or another potential heir, you have an interest in making sure the right people get the right inheritance. Our experienced team at Scott Law Group — Estate Counsel can review the succession case, help identify heirs, and make sure the succession is handled correctly. Contact us or call (504) 264-1057 today.

This article provides general information about Louisiana succession law and is not legal advice for your specific situation.

What Happens When Capacity Is Disputed

Disputes about an heir’s capacity to inherit — particularly in cases involving posthumously conceived children or children whose existence at the time of death is uncertain — are resolved by the succession court. Any interested party, including other heirs or creditors, may raise a capacity question. The court evaluates the evidence — birth records, medical records for assisted reproduction cases, family testimony — and makes a determination that becomes part of the succession proceedings.

These questions arise less frequently than disputes about will validity, but when they do arise, they can significantly affect how the estate is distributed. If you have questions about the capacity of a potential heir in a Louisiana succession, or if you believe a capacity claim has been wrongly raised against you or a minor child you represent, contact Scott Law Group — Estate Counsel or call (504) 264-1057 to discuss your situation.

Who Has the Legal Capacity to Inherit Under Louisiana Law

Louisiana Civil Code article 939 sets the baseline rule for capacity to receive an inheritance: a successor must exist — that is, be alive or at least conceived — at the moment the succession opens, which is the moment of the decedent’s death. Natural persons (human beings), legal entities such as corporations and nonprofits, and even unborn children who are conceived at the time of death and later born alive all have the capacity to inherit. An unborn child who is born alive after the decedent’s death inherits the same share they would have received had they been born before the death.

The only persons who are definitively incapable of inheriting are those who do not exist at all at the time of death. A child who was not yet conceived when the decedent died cannot inherit directly through the succession, though they may be named as a beneficiary of a testamentary trust. Entities that do not yet exist as legal persons at the time of death also cannot inherit, though a will can direct that assets be used to create a new entity or foundation.

Capacity to inherit is distinct from two other concepts that are sometimes confused with it. Testamentary capacity refers to the mental ability of the person making a will — not the heir. Unworthiness to succeed is a separate doctrine that disqualifies certain heirs based on specific bad acts against the decedent — it is not a lack of capacity but rather a forfeiture of the right to inherit. A person can have full legal capacity to inherit but still be disqualified through a declaration of unworthiness.

Unworthiness to Succeed: Louisiana’s Disqualification Doctrine

Louisiana Civil Code articles 941 through 947 describe the acts that render a successor unworthy to inherit. The list is specific and exhaustive — courts do not expand it beyond what the Civil Code enumerates. Recognized grounds for a declaration of unworthiness include: killing the decedent or attempting to do so; falsifying, destroying, concealing, or altering a will or testament; filing false criminal charges against the decedent that led to their arrest or imprisonment; coercing the decedent into making, changing, or revoking a will; and preventing the decedent from making a testament by threats, fraud, or violence.

Unworthiness is not automatic. A court must formally declare the heir unworthy before they lose their inheritance rights, and the declaration must be sought by an interested party — typically another heir or legatee who stands to benefit from the exclusion. The burden of proving the disqualifying act falls on the party seeking the declaration. Until a court enters a judgment of unworthiness, the heir retains their apparent inheritance rights.

The decedent can forgive an act of unworthiness during their lifetime. Louisiana Civil Code article 944 allows the decedent to pardon a successor for acts that would otherwise justify unworthiness, either expressly (in writing, typically in a will or notarial act) or tacitly (by acting toward the successor in a way that unambiguously manifests forgiveness after learning of the act). A validly forgiven act cannot be used to seek a declaration of unworthiness after the decedent’s death.

The Practical Impact of Unworthiness on the Louisiana Succession

When an heir is declared unworthy, they are treated as if they predeceased the decedent for purposes of the succession. Their share does not simply disappear — it passes to whoever would have inherited it if the unworthy heir had in fact died before the decedent. If the unworthy heir has descendants, those descendants can inherit by the right of representation, stepping into the unworthy heir’s place. The unworthiness is personal to the heir; it does not bar their children from inheriting.

The practical effect of a successful unworthiness proceeding depends on whether the unworthy heir was inheriting by will or by intestacy. A testamentary legatee who is declared unworthy loses the legacy; the property then passes according to the will’s substitution provisions or, if there are none, through intestate succession. An intestate heir who is declared unworthy loses their intestate share, which redistributes to the remaining intestate heirs or to the unworthy heir’s own descendants by representation.

Estate planners sometimes ask whether a will can preemptively disinherit someone for future bad acts. The answer is no — a will can only reflect circumstances known at the time of execution. Unworthiness is determined at the time of the succession based on acts that occurred. What a will can do is name substitute beneficiaries who receive if a named heir predeceases or is “otherwise unable to receive” — language broad enough to cover a subsequent unworthiness declaration.