What Happens if Your Spouse Dies Without a Will

If your spouse dies without a will, you have added uncertainty about your financial future. You may be unclear about what will happen to your spouse’s property and assets or if you’ll be able to maintain your standard of living. When your loved one dies intestate, it’s important to understand how to protect your legal rights.  

Classifying Your Spouse’s Property: Community and Separate Property

If your husband or wife died without a will, your spouse’s property will be divided according to Louisiana’s intestacy laws. Before you can know who inherits property, all of your spouse’s property must be classified as community property or separate property.

Community property refers to the property that you and your spouse acquired during your marriage. As the surviving spouse, you own half of that community property outright and in your own name. Your half of the community property will not go through the succession process. The other half of the property was owned by your spouse and will need to be distributed according to the laws of intestate succession.

Additionally, separate property of your spouse will need to be distributed according to the intestacy laws. Separate property includes property:

• Acquired before marriage
• Given to your spouse individually as a gift or inheritance before or during your marriage
• Purchased with assets obtained before marriage or individual gifts or inheritances received during marriage
• Damages in personal injury cases that were received during your marriage

Separate property, like your spouse’s half of the community property, must be distributed according to Louisiana’s laws of intestate succession.

Spouse’s Rights in an Intestate Succession

Once the property has been classified as community property and separate property, you can identify your inheritance. As the surviving spouse, you have the right to inherit your spouse’s community property as follows:

• If your spouse had children, grandchildren, or great-grandchildren, they will inherit your spouse’s community property. However, you will maintain a usufruct right to the property. That means, you may use the property until you die or remarry, but the children (grandchildren or great-grandchildren) own the property.
• If your spouse did not have living children (grandchildren or great-grandchildren), you inherit all of your spouse’s community property.

Additionally, you have the right to inherit your spouse’s separate property as follows:

• If your spouse had no living children (grandchildren or great-grandchildren), parents, or siblings, you inherit all of your spouse’s separate property.
• If your spouse had children (grandchildren or great-grandchildren), they inherit all of the separate property, and you don’t inherit any of it.
• If your spouse had living parents at the time of your spouse’s death, they inherit all of the separate property, and you don’t inherit any of it.
• If your spouse had siblings, they inherit all of the separate property, and you don’t inherit any of it.

Exceptions to these general rules may apply. For example, if your spouse was gifted real estate by a parent, grandparent, or other ancestor and your spouse dies intestate, ownership of the real estate may go back to the person who gifted it. Additionally, if you and your spouse were separated but not yet divorced at the time of your spouse’s death, you may not inherit anything.

Make Sure You are Treated Fairly During an Intestate Succession

To protect your rights, all of your spouse’s property must be appropriately classified as separate or community property, and all of your spouse’s relatives must be identified. Our experienced Louisiana succession lawyers help hundreds of families throughout Louisiana with these types of difficult situations each year. We will thoroughly investigate your spouse’s property and make sure that you are treated fairly and in accordance with Louisiana law. Call us, or contact us through this website to get started today.