Louisiana’s legal system, based on the civil code as opposed to common law, varies in some significant respects compared to the rest of the country, especially in regard to mineral ownership.
In determining descent and distribution rights in Louisiana, it is first important to note that Louisiana, like Texas, is a community property state, and marital property law similarly plays a large role in determining ownership of mineral interests.
Community property includes things acquired during the existence of the community with community funds or through the effort, skill or industry of either spouse.[1] The “natural or civil fruits” of separate property will also be classified as community property. However, a spouse can specifically reserve fruit or products of separate property, such as mineral and royalty interests, to prevent them from becoming community property.[2] In Louisiana, a rebuttable presumption exists that all assets and debts acquired during a marriage is community property.[3] Lastly, when trying to determine how the land or mineral rights should be classified, it is important to remember that as “immovable property” their relevant status as community or separate begins on the date the property was acquired.
Community Property: Spouse and Children
If the decedent is survived by a spouse and children, then the surviving spouse will keep their undivided one-half interest in community property in addition to a usufruct on the decedent’s one-half interest in the community that the children will receive[4]. A usufruct is a unique concept to Louisiana inheritance law. It is a type of personal servitude in which the usufructuary owns a real right of limited duration on the property of another. This right entitles the usufructuary to use the property and receive the fruits (i.e. the income) from the property. However, this usufruct right will terminate when the surviving spouse dies or remarries, whichever occurs first.[5] Decedent’s one-half community interest and all of his separate property will be distributed to the children in equal proportions, subject to the surviving spouse’s usufruct.[6] The children are considered the “naked owners” during the time of the surviving spouse’s usufruct.
If a child of the decedent predeceased their parent but left children of their own, then those grandchildren will represent their parent in the line of succession and are entitled to the equal share that their parent would have received had they survived.[7]
Community Property: Spouse and Parents/Siblings (No Descendants)
In the situation that a deceased individual is not survived by any children or descendants, the date that the decedent died will become important. If the decedent died on or after January 1, 1982, then the decedent’s one-half interest in the community goes entirely to the surviving spouse[8]. However, if the decedent died prior to January 1, 1982, then the surviving spouse would get one-half of the decedent’s community interest, and the decedent’s parents would get the other one-half.[9] This means that the surviving spouse is left with a three fourths interest in the community property with the parents taking one-fourth.
Separate Property
Another distinctive feature in Louisiana’s succession laws is that, in regard to separate property, the children, parents, and siblings of the decedent will receive distributions before the surviving spouse does. In the case that the spouse and children survive the decedent, the children and descendants take the entirety of decedent’s separate property.
In the case that that there are no descendants, the property would descend to the next class. The date the decedent died again will be relevant in this determination. If the decedent died on or after January 1, 1982, then the decedent’s siblings will receive his share of separate property, subject to a usufruct in favor of the decedent’s parents.[10] However, if the decedent died prior to January 1, 1982, the parents will receive half of the decedent’s separate property in full ownership, one-fourth for each surviving parent, and the remainder is split between the surviving siblings.[11]
Only in the case that the decedent is not survived by descendants, parents, siblings, or descendants of siblings (i.e. nephews and nieces) will the decedent’s separate property devolve to surviving spouse.[12] However, if the decedent died before January 1, 1982, then the decedent’s ascendants inherit the decedent’s separate property (i.e. grandparents, aunts, and uncles) to the exclusion of the surviving spouse.[13]
Finally, following the surviving spouse, if the decedent was born on or after January 1, 1982, then the separate property will be distributed to ascendants and then more remote collaterals, and finally the State if there are no surviving relatives.[14]
[1] La. Civ. Code art. 2338.
[2] Id. art. 2339.
[3] Id. art. 2340. See also Dupree v. Dupree, 948 So. 2d 254, 256 (La. App. 2d Cir. 2006).
[4] Id. art. 890.
[5] Id.
[6] Id. art. 880.
[7] Id. art. 888.
[8] Id. art. 889.
[9] Id. art. 915, prior to amendment by Act 919 of 1981.
[10] Id. art. 891.
[11] Id. art. 903-904, prior to amendment by Act 919 of 1981.
[12] Id. art. 894.
[13] Id. art. 895.
[14] Id. art. 902.