Determining a Spouses Share in an Intestate Succession

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.

What a Surviving Spouse Actually Inherits — and What They Don’t

The intuitive assumption — “my spouse died without a will, so I inherit everything” — is wrong in Louisiana. The surviving spouse’s intestate share depends on two variables: (1) whether the decedent had children, and (2) whether the assets are community or separate property.

Community property (assets acquired during the marriage): Louisiana law provides that each spouse already owns one-half of the community assets. When a spouse dies, only the decedent’s half passes through succession. That half does not automatically go to the surviving spouse. Instead:

• The decedent’s half of the community property goes to the children (or grandchildren, if a child predeceased)
• The surviving spouse receives a usufruct — the legal right to use and enjoy the property during their lifetime — but not outright ownership of the decedent’s half
• The children hold naked ownership of that half, meaning they own it but cannot use it during the surviving spouse’s lifetime (while the usufruct lasts)

If there are no children: When the decedent dies without descendants (children or grandchildren), the surviving spouse inherits the decedent’s half of the community property outright — not just as usufructuary, but as full owner. For the complete Louisiana inheritance order, see our guide to who inherits under Louisiana law.

Separate property (assets owned before the marriage, or received as a gift or inheritance during the marriage): The surviving spouse has no automatic right to the decedent’s separate property if the decedent died without a will and had descendants. The separate property goes entirely to the children. If there are no descendants, the surviving spouse inherits the separate property — but only after the decedent’s parents and siblings have priority under the intestate succession order.

Understanding the Usufruct: What It Means for Daily Life

The usufruct the surviving spouse receives over the children’s share of community property is a powerful right — but it has limits that families often discover only when a dispute arises.

• Right to live in the home: The usufructuary spouse can continue living in the family home without the children’s permission, and the children cannot force a sale during the usufruct.
• Right to use and enjoy income: The usufruct includes the right to any income the property generates — rent from rental property, interest on accounts, dividends from investments.
• Obligation to preserve the assets: The usufructuary must maintain the assets and cannot deplete or waste them. The surviving spouse cannot, for example, take out a large mortgage on the children’s naked ownership interest, sell assets subject to the usufruct without the children’s consent, or allow property to deteriorate through neglect.
• Termination of the usufruct: The usufruct terminates when the surviving spouse dies, remarries (if the usufruct was over separate property — for community property it continues through remarriage), or in some cases if they remarry and the will specified otherwise. When the usufruct ends, the children (or their heirs) receive full ownership.

How the Surviving Spouse Can Protect Their Position

Because Louisiana intestate succession leaves the surviving spouse with use-rights rather than ownership, proactive planning makes a significant difference:

• A will can grant outright ownership. A spouse can change the default usufruct to outright ownership by making a will. Instead of leaving their half of community property to the children subject to the surviving spouse’s usufruct, the will can leave everything to the surviving spouse outright (within the forced heirship limits for forced heirs under age 24).
• Both spouses can execute wills. Mutual wills drafted by an attorney ensure each spouse’s intent is clearly documented and enforceable.
• Partition of community: Spouses can partition their community property during their lifetimes, converting certain assets from community to separate property in each spouse’s name. This can simplify succession later.
• Surviving spouse’s election: During the succession proceeding, a surviving spouse may in some circumstances have an election between accepting the usufruct or accepting a different arrangement — an attorney can explain the options specific to the estate.