Forced Heirs and Surviving Spouse Flashcards
Legitime
Definition
Forced portion of estate that forced heirs are entitled to
Forced heirs
Legitime
Calculation
(1) Determine Aggregate Value of Property
(2) Subtract Estate Debts
= Net Estate
(3) Add DIV w/in 3 years
= Active Mass
(4) Calculate Forced/Disposable Portions
(5) Calculate Legitime
Legitime Calculation
(1) Determine Aggregate Value of Property
Property included; Excluded; Valuation
Valued at time of decedent’s death
Property Included: Movables and immovables decedent owned at death
* MOVABLES: Included IF decedent is LA domiciliary
* IMMOVABLES: Included IF BOTH decedent AND forced heir are LA domiciliary
Exclusions: Marital portion and Recognized Gratuitous Transfers –
* Life insurance proceeds
* Annuity death benefits
* US Savings Bonds naming beneficiaries
* Retirement account and Pension benefits
Legitime Calculation
(2) Subtract Estate Debts
= Net Estate
Debts included:
* Debts due by decedent
* Administration expenses
[Aggregate Value of Property – Estate Debts = Net Estate]
NET ESTATE: Value of estate not subject to claims of creditors
* Insolvent estate = Negative Net Estate
* – Must zero out net estate
Legitime Calculation
(3) Add DIV w/in 3 years
= Active Mass
Included; Excluded
DIV Included:
US Savings Bonds
Annuities
DIV Excluded:
Life Insurance
Retirement Accounts/Pensions
Remunerative Donations
Onerous Donations
Donations During Marriage to Former Spouse
[Net Estate + DIV = Active Mass]
Legitime Calculation
(4) Calculate Forced/Disposable Portions
FORCED HEIRS =
FORCED PORTION | DISPOSABLE PORTION
0 forced heirs =
0 Entire estate
1 forced heir =
1/4 estate | 3/4 property of donor
2+ forced heirs =
1/2 estate | 1/2 property of donor
DISPOSABLE PORTION = Donation limit
* Donation Omnium Bonorum prohibited; Must reserve enough property for subsistence
Legitime Calculation
(5) Calculate Legitime
General Rule: Division by HEADS
[Legitime = Forced portion / Number of forced heirs]
Exception for Representatives: Division by ROOTS
[Legitime = Forced portion of predeceased heir / Number of FH by representation]
GREENLAW RULE: Use lower of forced portion/legitime fraction and intestacy fraction (5+ kids)
Legitime
Satisfying
(1) Impute Property Received
(2) Distribute Available Assets
(3) Reduce Excessive Donations
Satisfying legitime
(1) Impute Property Received
Property imputed
Property Imputed:
* Property received by intestacy
* Property received by testament
* Proceeds of insurance policies
* Proceeds of retirement plans
* Donations inter vivos subject to collation, valued at date of gift.
Satisfying legitime
(2) Distribute Available Assets
NET ESTATE = Available assets
Satisfying legitime
(3) Reduce Excessive Donations
REDUCTION: “Fictitious collation”
Order of Reduction:
(1) DMC
* According to testator’s intent
* Universal and General Legacies
* Legacies of Money
* Legacies of Groups/Collections of Things
* Legacies of Particular Things
(2) DIV (made w/in 3 years), valued at date of donation
(3) Legacy to SS: Only to extent necessary to eliminate impingement on legitime
Satisfying Legitime
Collation
Definition; Standing
Supposed or real return of property received in advance of inheritance so property may be divided together
Standing: May be demanded only by forced heir if not demanded by testator in will
* Exception:Creditors of forced heir may demand collation if forced heir is in federal bankrupty
Satisfying legitime
Collation
Property collated; Exemptions
Property Collated: Gifts made within three years of decedent’s death, valued at date of gift
* Exception: Donor may dispense with collation in testamentary form
Property Exempt from Collation:
* Recognized gratuitous transfers
* Expenditures for board, support, education, and apprenticeship made during minority
* Marriage presents
* Gifts made by parent’s own hands for child’s pleasure or use (“usual and customary” manual gifts)
* Profit from contracts with parents, if contract does not give child advantage
* Partnership with parents made without fraud
Civil effects of marriage for surviving spouse
Marital portion
Definition; Source; Prescription
Charge on succession of decedent spouse; Not inheritance
Source: Decedent died “rich in comparison” to surviving spouse
Prescription: Three years from date of decedent’s death
* Waiver/Renunciation: May not be waived or renounced in advance
* Valid Renunciation: Value of rights must still be deducted from marital portion
* Right of Action: Strictly personal
– After claim for marital portion – Heritable action
* Periodic Allowance: Right of surviving spouse while estate is under administration
Civil effects of marriage for surviving spouse
Marital portion
Requirements
(1) Spouses not separated through fault of surviving spouse; AND
* Exception: Reconciliation
(2) 5:1 ratio of relative wealth
* Included: Physical assets; Accounts, and Credit rights
* Excluded: Future potential earning; Potential income sources; and other sources of support
