Like many states, Louisiana has a set of default rules that will apply to determine what will happen to your property if you die without a Last Will and Testament. For some people, the default rules that kick in are sufficient to carry out their wishes and as such there is no need for having a Last Will and Testament. However, an understanding of these rules is recommended to make sure that your wishes can be carried out under these default rules of Louisiana succession.
Under the default succession rules in Louisiana, community property and separate property are handled differently. Generally, community property assets are things that were acquired during the marriage of the decedent and his or her spouse that jointly belong to the decedent and his or her spouse. Those assets which are not community property are considered separate property assets of the decedent.
Many people do not know that the default rules do not favor a surviving spouse. If you die without a will, your separate property will first go to your children, and if you do not have children, your separate property will go to your brothers and sisters, and if they are deceased it will go to your parents. It is only in the event that you do not have children, or parents, or siblings that your spouse will acquire your separate property from your succession. If you wish to avoid this situation, proper planning is necessary.
Community property is handled somewhat differently under the default rules. Again however, your surviving spouse is not favored. The default rule provides that the ownership of your community property will go to your children who will then co-own the community property with the surviving spouse. It is only if you have no children that your spouse will receive your community property from your succession.
Although your children inherit your community property, the default rules do grant your surviving spouse the right to use your community property until his or her death or until remarriage, whichever occurs first. This right to use the community property is known as a spousal usufruct in Louisiana.
This is just a brief explanation of the default rules that apply in Louisiana when someone dies “intestate,” meaning without leaving a will. If these default rules do not accomplish what you want to happen to your property after you are gone, advanced planning and the preparation of a will is needed.