Here are a few of the many questions I get about the Louisiana usufruct:
- If my husband dies, can his kids kick me out of the house?
- If my husband dies and I sell the home, do I have to give his kids half the money?
- If my spouse dies, can his or her children force me to sell the house?
- If my spouse dies, do my spouse's children have to sign the paperwork if I want to sell my house?
- If I die, can my spouse leave my house to her new husband?
- I can't stand my daughter-in-law. Can she kick my wife out our home if I die?
This is just a small taste of the many questions we get regarding the Louisiana usufruct, specifically as it relates to the family home after the first spouse dies.
Spouse Dies Without a Will
If a married person dies without a Last Will in Louisiana, and the married couple purchased a home during the marriage, then the ownership of this community property residence will be divided as follows: the surviving spouse will continue to own his or her undivided one-half of the home, and the surviving spouse inherits the usufruct of the deceased spouse's one-half of the home. This usufruct will last until the surviving spouse either dies or remarries.
If the surviving spouse wants to sell the home, the surviving spouse may do so but the children of the deceased spouse (the "naked owners") must agree to and sign the necessary paperwork to sell the home. If the home is sold, the surviving spouse will receive all of the proceeds of the sale because when an asset subject to usufruct is sold, the usufructuary will receive the proceeds.
If the surviving spouse is not the parent of the children of the deceased spouse, the children of the deceased spouse may force the usufructuary to post bond in order to protect the interest of the naked owners.
Extra Powers Given To Usufructuary in Last Will
You can write a last will and testament and bequeath your spouse the usufruct and give your spouse more power than the "intestate" (see above) usufruct gives them.
First, you may provide that your spouse's usufruct will last for your spouse's lifetime. This will prevent your children from kicking your spouse out of the house if your spouse remarries. The "lifetime usufruct" may also prevent federal estate tax from being due to the IRS within nine months after your death if you have a large estate.
Second, you may provide that your surviving spouse shall have the authority to sell items over which the surviving spouse has usufruct, without having to obtain the written consent of the naked owners. This is tricky and it has to be worded exactly right.
Third, you can provide that your spouse is not required to post a bond if your surviving spouse is not the parent of the naked owners. This is a no-brainer. Bonds are expensive and a waste of money. Always make sure you waive the bond requirement for the usufructuary.
There's more to the Louisiana usufruct than I've described above, but if you live in Louisiana and you want to protect your spouse from having problems after your death, you better educate yourself on how this works - or work with an attorney like me who can guide you through this process.
We provide estate planning legal services for individuals, couples, and families, all over the State of Louisiana. Technology makes it easy for us to customize estate planning documents for anyone in the state at a reasonable cost. If you are interested in discussing how we may help you and your family get your affairs in order, give us a call at 225-329-2450, or drop me an email at firstname.lastname@example.org