Surviving spouse rights in Louisiana include:
- Usufruct
- Community Property
- Homestead Exemption
- Maintenance Allowance
These widow’s rights in Louisiana are different from most surviving spouse rights in other states. This is because Louisiana is a community property state, and also has the concept of usufruct, discussed below.
Usufruct
Under Louisiana law, a surviving spouse may be entitled to usufruct. A usufruct is the right by one person in the property of another. The majority of the United States refers to this as a life estate. Usufructs differ only slightly from the life estate, generally, in that a usufruct may last for a specified period of time. The owner of the property under this arrangement is referred to as a “naked owner” as opposed to a remainderman—as the term is used elsewhere.
A surviving spouse has a usufruct over community property inherited as a result of their deceased spouse’s passing under Louisiana law governing intestate succession. Usufructs may also be created via a lifetime gift or through a devise or bequest in a will.
Surviving Spouse Rights In Louisiana If No Valid Will
Under Louisiana law, if someone dies without a will, they are said to have died intestate. This means that Louisiana law will govern the distribution of the decedent’s estate.
Community Property
Community property is property acquired while the surviving spouse and decedent were married. The surviving spouse’s share of decedent’s community property upon death depends on decedent’s other survivors.
- All community property: A surviving spouse in Louisiana is entitled to all of the community property if the decedent had no surviving descendants.
- Usufruct: If the decedent had surviving descendants, then the surviving spouse is given a usufruct over the decedent’s community property. The usufruct ends when the surviving spouse dies or remarries.
- Real Estate: If the decedent was gifted real estate from an ancestor, the real estate passes back to the ancestor at death, and only if the decedent did not have children.
Separate Property
Louisiana law treats surviving spouse rights in decedent’s separate property differently than in community property. Separate property includes (1) property owned prior to the marriage; (2) inherited property; or (3) property given to one of the spouses. Absent a will’s provisions to the contrary, a surviving spouse generally will not inherit the other spouse’s separate property.
Separate property goes first to the decedent’s children and descendants. The surviving spouse is only entitled to separate property if there are no surviving descendants, siblings, or parents of the decedent.
Surviving Spouse Allowances and Exemptions
A surviving spouse has rights to certain allowances and exemptions under Louisiana law.
- Homestead exemption: A surviving spouse has the right to a homestead exemption under R.S. section 20:1.B.
- Maintenance Allowance: The surviving spouse also has the right to a reasonable periodic allowance for their maintenance during the administration period, if the succession is sufficiently solvent. C.C.P. section 3321.
