My husband died and the house we have lived in for the last 20 years is only in his name, and the bank accounts were all in his name as well. My in-laws want me out of the house and want the money out of the bank accounts. I will be left with nothing…what do I do?
Poor Planning Can Put You at Risk
Unfortunately, we run into this situation all too often. It comes up with second marriages or when people get married later in life. What happens is that the newlyweds move into a house that was purchased and owned prior to the marriage by just one of the spouses. They live in the house throughout their marriage, treating it as their family home.
Unless proper estate planning is done, the spouse who moved in can find themselves kicked out of the family home by the in-laws or step-children. This is due to the fact under Louisiana law, a surviving spouse does not inherit the separate property of the spouse who passes away. Unfortunately, many couples do not know this and without planning, can result in the surviving spouse facing becoming homeless and penniless as the result of the death of their husband or wife.
Your Right to a "Marital Portion" of Your Spouse's Estate
In order to avoid this unfortunate outcome, Louisiana law recognizes what is known as a “marital portion.” The law provides that when a spouse dies rich in comparison with the surviving spouse, the surviving spouse is entitled to claim a “marital portion” from the succession of the deceased spouse. See Article 2432 of the Louisiana Code of Civil Procedure. The purpose of this law is to prevent a surviving spouse from being left in poverty after having become accustomed to the use of the assets of the spouse who passed away.
In order for a surviving spouse to qualify for the marital portion, the value of the assets of the deceased spouse is compared to that of the surviving spouse. Although there is no concrete test to qualify, as a rule of thumb the surviving spouse will qualify for the marital portion if his or her assets are worth 20% or less of the value of the deceased spouse’s assets. As a simple example, assume that a husband dies and the value of his property at the time of his death is $100,000.00. If the surviving wife’s assets are worth $20,000.00 or less, she would likely qualify to receive a portion of her husband’s assets from his succession.
The amount of the marital portion is set at one-fourth (1/4) of the succession in ownership if the deceased died without children, or one-fourth (1/4) in usufruct for life if the deceased spouse is survived by three or fewer children, or a child’s share in usufruct for life if the deceased spouse is survived by more than three children. The marital portion is capped at one million ($1,000,000.00) dollars. The amount of the marital portion may also be reduced by the amount of any property left to the surviving spouse in the deceased spouse’s will, and also reduced by the amount of any payments the surviving spouse receives as the result of the death of the spouse which includes life insurance proceeds, social security payments, and pension benefits that come about because of the death of the spouse.
The marital portion is an important right in favor of the surviving spouse that must be considered and asserted in the succession when possible to avoid a surviving spouse falling into poverty.
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The Legal Basis for the Surviving Spouse’s Right to Stay: The Usufruct
The surviving spouse’s right to remain in the family home is grounded in Louisiana’s usufruct law. When a Louisiana resident dies without a will (or with a will that is silent on this point), Louisiana’s intestate succession laws give the surviving spouse a usufruct — the legal right to use, possess, and enjoy the decedent’s community property — during the surviving spouse’s lifetime, ending upon remarriage.
Under this usufructuary arrangement:
- The children inherit naked ownership. The decedent’s share of the community property (including the family home if it is community property) passes to the children as “naked owners” — they own the title but cannot use or enjoy the property as long as the usufruct exists.
- The surviving spouse retains the right to live in the home. The usufructuary (surviving spouse) can continue to occupy the family home, receive any rental income it produces, and manage it during the usufruct. The children cannot legally evict the surviving spouse from the home while the usufruct continues.
- The usufruct ends at death or remarriage. When the surviving spouse dies or remarries, the usufruct terminates automatically. The children’s naked ownership then “expands” into full ownership — they can sell, rent, or occupy the property without restriction.
Limitations and Obligations of the Surviving Spouse as Usufructuary
The usufruct gives significant rights, but it also carries obligations that the surviving spouse must fulfill:
- The surviving spouse cannot sell the home without the children’s consent. The usufructuary can use and enjoy the property but cannot permanently dispose of it. Selling the home requires the naked owners (children) to join in the sale. If children are minors, their tutors or the court must authorize their participation. This is one of the most common practical problems in estates with a family home — the surviving spouse wants or needs to sell, but must get all children to cooperate.
- The surviving spouse cannot mortgage the home without the children’s consent. Taking out a loan against the home requires the children as naked owners to join in the mortgage. A surviving spouse who needs cash from home equity cannot do so unilaterally.
- The surviving spouse must maintain the property. As usufructuary, the surviving spouse bears the cost of ordinary maintenance and repairs. Major structural expenses (the “substance” of the property) may be the naked owners’ responsibility under Louisiana law, but this distinction is often contested in practice.
- The surviving spouse must pay property taxes and insurance. These are ordinary charges of the usufruct. Failure to pay can create disputes with the naked owners and potentially threaten the usufruct.
When the Home Is Separate Property: Different Rules Apply
The usufruct right described above applies to the decedent’s community property. If the family home is the decedent’s separate property — owned before the marriage, inherited, or received as a gift — the surviving spouse has no automatic usufruct over it under intestate succession law.
When the home is separate property and there are children, the home passes to the children outright under intestate succession. The surviving spouse’s right to remain is limited to whatever the children agree to voluntarily — there is no legal right to stay indefinitely. This is a situation that estate planning can address: a will can give the surviving spouse a usufruct (or even outright ownership) of separate property, protecting the spouse in ways the intestate succession rules do not.
For the same reason, a surviving spouse whose partner owned a home before marriage should consult a succession attorney promptly after the death to understand exactly what rights exist under both the succession and any existing estate planning documents.
Scott Law Group, Estate & Probate Division has helped many clients throughout Louisiana protect their right to a marital portion of a deceased spouse's estate. If your right to stay in the home you shared with your recently deceased spouse is being questioned, call our office today to discuss how we may be able to help you.
The Usufruct: Your Legal Right to Remain in the Family Home
One of the most powerful protections Louisiana law extends to surviving spouses is the legal usufruct. When a married person dies intestate — without a valid will — leaving a surviving spouse and children who are also the children of the surviving spouse, Louisiana law automatically grants the surviving spouse a usufruct over the deceased’s share of the community property. That usufruct includes the family home, and it entitles the surviving spouse to continue living in and using the home for the rest of their life without the children being able to force a sale or demand physical possession of the property.
The usufruct is a real right recognized and enforced under Louisiana’s Civil Code. It is more than a permission to live in the home — it is a property right that attaches to the land itself, that can be recorded in the conveyance records, and that the children (called “naked owners” under Louisiana law) cannot interfere with during its duration. The usufruct lasts until the surviving spouse dies, unless the will provides otherwise. During the usufruct, the children own the underlying property interest but cannot occupy, sell, or mortgage it without the usufructuary’s consent.
Louisiana community property law gives the surviving spouse specific rights in the community home that exist independently of the usufruct. The surviving spouse already owns an undivided one-half interest in all community property as a co-owner during the marriage. That ownership does not disappear at death. What the deceased spouse owned — their one-half share — is what passes to the heirs and becomes subject to the usufruct. When heirs try to force the surviving spouse out, the spouse owns half outright and holds a usufruct over the deceased’s half, giving the surviving spouse essentially complete control of the home during their lifetime.
When the deceased left a will, the picture is more complex. A Louisiana will can modify or limit the usufruct — granting it for a fixed term, conditioning it on non-remarriage, or eliminating it for certain property. A will can also extend the usufruct to cover separate property or to situations involving children from a prior relationship. Reading the will carefully with an attorney is essential before assuming what rights the surviving spouse has. The absence of an explicit usufruct provision in a will does not automatically mean the statutory usufruct applies; it depends on the structure of the testamentary dispositions and whether the will was intended to be exhaustive of the estate plan.
Practically, the surviving spouse should have the usufruct recorded in the conveyance records of the parish where the home is located as soon as possible after the succession proceeding. Recording puts the world — including potential creditors of the children, future buyers, and title examiners — on notice that the surviving spouse holds a real right that cannot be defeated by subsequent transfers. An attorney can include the usufruct language directly in the Judgment of Possession or in a separate recordable instrument filed alongside it.
Navigating Title Issues and the Succession Process After a Spouse Dies
Many surviving spouses discover — sometimes years after the death — that the family home’s title is in a problematic state. Perhaps the home was titled solely in the deceased spouse’s name. Perhaps the deed was never updated to reflect a community property designation. Perhaps the home was purchased before the marriage as the deceased’s separate property. In each scenario, the path forward requires different legal tools, and none of them can be accomplished without some form of succession proceeding.
Under Louisiana’s intestate succession rules, the surviving spouse does not automatically inherit the deceased spouse’s share of the estate in full ownership unless there are no descendants. If the couple had children together, those children are forced heirs entitled to a portion of the estate. The surviving spouse may receive a usufruct over the community property, but the children take naked ownership. If the deceased had children from a prior relationship, the statutory usufruct may not apply at all, depending on whether those stepchildren are also children of the surviving spouse. The result is that a title examiner reviewing the property years later will flag ownership questions that only a properly conducted succession can resolve.
A Judgment of Possession, recorded in the conveyance records of the parish where the property is located, transfers legal title from the deceased’s estate to the rightful heirs and establishes the surviving spouse’s usufruct as a recorded interest. Without this judgment, the title chain is broken. When the surviving spouse eventually tries to sell the home — or when the children want to sell after the usufruct ends — a title company will require proof that the succession was properly handled and that all interests in the property were properly conveyed. Trying to address this problem years after the fact is possible but expensive; completing it promptly is far more efficient.
Succession is required to transfer clear title to the surviving spouse even when the estate is small and all heirs are cooperative. Louisiana does not have a survivorship mechanism for real estate comparable to joint tenancy with right of survivorship in other states. Every piece of real estate that a decedent owned, whether community or separate, must pass through some form of succession proceeding before it can be transferred to heirs. The small succession affidavit procedure available in Louisiana is limited to movable property below a certain threshold — real estate always requires a formal succession judgment regardless of the estate’s overall size.
The surviving spouse should also understand that the community property regime terminates at the moment of death. From that point forward, each item of community property is owned in indivision, with the surviving spouse holding one-half and the heirs collectively holding the other half. This means the surviving spouse cannot sell, mortgage, or make major improvements to the home without either co-owner consent from the heirs or a court order. Completing the succession and having the usufruct properly documented allows the surviving spouse to manage the property freely during the usufruct period without needing heir approval for ordinary maintenance and use decisions.
When Staying Is Not the Right Choice: Practical Alternatives for Surviving Spouses
For some surviving spouses, staying in the family home is not financially feasible, physically practical, or emotionally desirable. The home may be too large to maintain on a single income, too costly in property taxes and insurance, or simply in a location that no longer suits the surviving spouse’s needs. In these cases, the legal framework still matters — but the goal shifts from protecting the right to stay to maximizing the value the home can generate for the surviving spouse going forward.
The surviving spouse who holds a usufruct has the right to lease the property and collect rent during the usufruct period. This means the surviving spouse can move somewhere smaller or more manageable, rent out the family home, and use that income to supplement retirement or cover new living expenses. The naked owners — typically the children — cannot interfere with a properly established lease during the usufruct. The surviving spouse is not required to share rental income with the naked owners during the usufruct period, since the usufruct entitles the holder to the fruits of the property.
If the surviving spouse wishes to sell the home, the usufruct creates a more complex situation. To convey the property free and clear of the usufruct, all parties — the usufructuary and all naked owners — must agree to the sale and sign the act of sale. The proceeds are then divided, with a portion representing the actuarial present value of the usufruct going to the surviving spouse and the remainder going to the naked owners proportionally. An actuary can calculate the usufruct’s value based on the surviving spouse’s age and the applicable interest rate. This approach allows all parties to unlock the equity in the home without years of waiting.
Some surviving spouses consider a reverse mortgage to access equity while remaining in the home. However, a reverse mortgage on property subject to a usufruct raises significant title issues. The naked owners’ interest creates a lien priority problem that most reverse mortgage lenders are not equipped to accommodate. If a reverse mortgage is being considered, the succession may need to be structured to give the surviving spouse outright ownership rather than a usufruct, which requires the children’s consent and possibly compensation for releasing their naked ownership interest. An attorney can help negotiate this restructuring before the succession judgment is entered.
Finally, if the surviving spouse faces Medicaid planning concerns or potential creditor claims from the deceased’s debts, keeping the home in the surviving spouse’s own name may expose it to those risks later in life. An estate planning attorney can evaluate whether placing the home into a trust, restructuring the ownership arrangement between the usufructuary and naked owners, or taking other protective steps would better preserve the asset for the next generation while still giving the surviving spouse the security and control they need during their lifetime.