Every year Louisiana estate planning laws change but we had a couple of big ones this past year. Both changes - if incorporated into the family's important estate planning legal documents - permit the surviving spouse to exercise more control over the family's assets.
Usufruct. A usufructuary (typically a surviving spouse) can now donate assets over which he or she has a usufruct. BUT - the power to donate must be EXPRESSLY provided in the Will of the first spouse to die. There may be estate tax, Medicaid, or family dynamic reasons why a surviving spouse should donate, but again, the power must be expressly provided for in the WIll of the first spouse to die. Having dealt with so many suriviving spouses, I know that all married couples in Louisiana that leave each other usufruct should consider new Wills.
Living Trust. Typically when a married couple has a probate-avoidance living trust, and one spouse dies, that spouse's share of the trust becomes irrevocable. Now, if the documents EXPRESSLY permit, the surviving spouse can modify the rights of the beneficiaries so long as the beneficiaries are the descendants of the surviving spouse.
This appears to be one of those years that - because of major legislative changes - couples must seriously consider revising their family's estate planning documents.