Successions Civil Code
OVERVIEW OF THE LAW OF SUCCESSION
Prof. Monica Wallace
Fall 2002
I. INTRODUCTION
Art. 870 Modes of Acquiring Ownership
The ownership of things or property is acquired by succession either testate or intestate, by the effect of obligations, and by the operation of law.
Art. 871 Meaning of Succession
Succession is the transmission of the estate of the deceased to his successors. The successors thus have the right to take possession of the estate of the deceased after complying with the applicable provisions of law.
Art. 872 Meaning of Estate
The estate of a deceased means the property, rights, and obligations that a person leaves after his death, whether the property exceeds the charges or the charges exceed the property, or whether he has only left charges without any property. The estate includes not only the rights and obligations of the deceased as they exist at the time of death, but all that has accrued thereto since death, and the new charges to which it becomes subject.
Art. 873 Kinds of Succession
There are two kinds of succession: testate and intestate.
Art. 874 Testate Succession
Testate succession results from the will of the deceased, contained in a testament executed in a form prescribed by law. This kind of succession is covered under the Title: Of donations inter vivos and mortis causa.
Art. 875 Intestate Succession
Intestate succession results from the provisions of law in favor of certain persons, in default of testate successors. Intestate succession is the subject of the present title.
Reasons for Intestacy:
1) Death without a will
2) Death without a valid will
3) Death with a will that doesn’t dispose of all property
4) Death with a will, but a portion is invalid
e.g. – Part of the estate is left to someone who cannot accept.
Art. 876 Kinds of Successors
There are two kinds of successors corresponding to the two kinds of succession described in the preceding articles:
- Testate successors, also called legatees.
- Intestate successors, also called heirs.
Art. 877 Unconditional and Beneficiary Successors
Successors are divided into two classes according to the manner in which they accept the estate transmitted to them: unconditional successors and beneficiary successors.
Art. 878 Unconditional Successors
Unconditional successors are those who accept without any reservation, or without any reservation, or without making an inventory, whether their acceptance be express or tacit.
Art. 879 Beneficiary Successors
Beneficiary successors are those who accept under the benefit of an inventory as provided by law.
II. DEVOLUTION OF PROPERTY BY INTESTATE SUCCESSION – Arts. 880-901
Questions to ask when approaching a hypo/question:
1) Is it separate or community property?
2) Is/are the heir(s) in question a member(s) of the priming class?
A. REPRESENTATION AND TRANSMISSION – Arts. 881-887
Art. 880 Intestate Succession
In the absence of valid testamentary disposition, the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or adoption, and in favor of his spouse not judicially separated from him, in the order provided in and according to the following articles.
Methods of Coming into Succession:
1) By One’s Own Right – a member of the priming class
2) Representation – taking the place of a deceased relative of a nearer degree.
3) Transmission – Taking the place of a relative of a nearer degree who died after the succession.
Art. 881 Representation: Effect
Representation is a fiction of the law, the effect of which is to put the representative in the place, degree, and rights of the person represented.
Art. 882 Representation in the Direct Line of Descendants
Representation takes place ad infinitum in the direct line of descendants. It is permitted in all cases, whether the children of the deceased concur with the descendants of the predeceased child, or whether, all the children having died before him, the descendants of the children be in equal or unequal degrees of relationship to the deceased. For purposes of forced heirship, representation takes place only as provided in Article 1493.
Art. 883 Representation of Ascendants not Permissible
Representation does not take place in favor of the ascendants, the nearest relation in any degree always excluding those of a more remote degree.
Art. 883 Representation in the Collateral Line
In the collateral line, representation is permitted in favor of the children and descendants of the brothers and sisters of the deceased, whether they succeed in concurrence with their uncles and aunts, or whether, the brothers and sisters of the deceased having died, their descendants succeed in equal or unequal degrees.
-- i.e – nieces and nephews
Art. 885 Basis of Partition in Cases of Representation
In all cases in which representation is permitted, the partition is made by roots; if one root has produced several branches, the subdivision is also made by roots in each branch, and the members of the same branch take by heads.
-- Priming class takes by roots
-- Branches of the root take by heads (i.e. branches divide the percentage the root receives or should have received)
Art. 886 Representation of Deceased Persons Only
Only deceased persons may be represented.
*n.b.* Art. 946 Devolution of Succ. Rights of Successor Declared Unworthy
(exception) -- Children of unworthy heir can represent parent as if he/she was deceased.
-- The unworthy parent may not claim a usufruct.
Succession of the Misses Morgan (1871)
Representation is a fiction of law, the effect of which is to put the representative in the place, degree, and right of the person represented. Furthermore, although a person stands in the place, degree, and right of a person, a representative can have more rights than the person represented.
The kids are not responsible for the debts of the father when representing him in
the succession.
Destrehan v. Destrehan (1826)
If a descendant takes by representation, he is responsible for collating the gifts from the grandfather to the father.
*n.b.* -- Heir doesn’t have to pay debts, but he may have to collate the gifts.
Collation of gifts generally refers to the return of any gifts given by decedent to an heir within the last six (6) months of his life.
Succession of DuBos (1987)
This case is a straightforward discussion of transmission.
Art. 937 Transmission of Rights of Successor
The rights of a successor are transmitted to his own successors at his death, whether or not he accepted the rights, and whether or not he knew that the rights accrued to him.
Transmission – how the estate passes if the original heir dies after succession.
Art. 887 Representation of Decedent Whose Succession was Renounced
One who has renounced his right to succeed to another may still enjoy the right of representation with respect to that other.
Representation Transmission
- Original heir dies before decedent - Original heir dies after decedent
- Decedent’s succession not open - Decedent’s succession already open
- Original heir must be deceased - Original heir must be deceased
unless declared unworthy
B. SEPARATE PROPERTY
Questions to ask when approaching a hypo/question: (again)
1) Is it separate or community property?
2) Is/are the heir(s) in question a member(s) of the priming class?
Seven Classes of Heirs: (Separate Property)
1. Descendants (C.C. 888)
-- natural line
-- adopted line
-- qualified illegitimates – not informally recognized children (arts. 203, 208, 209)
2. Brothers and sisters and parents (C.C. 891)
-- parents must make at least an informal acknowledgment
-- legitimate parents
-- parents filiated by child
(n.b. – Brothers and sisters take naked ownership subject to the parents’ usufruct.) (** Always look for descendents of siblings!)
3. Parents in the absence of brothers and sisters (C.C. 892)
4. Brothers and sisters in the absence of parents (C.C. 892)
-- half-siblings as well (C.C. 893)
-- Half-siblings portion is divided between maternal/paternal lines
5. Surviving spouse (C.C. 894)
-- Not judicially separated (applied to all spouses before law changed)
Now: the judicial separation applies only to covenant marriages.
Art. 102 divorces can take advantage of this!
6. Ascendants (more remote than parents) (C.C. 895)
-- Nearest in degree excludes all other ascendants.
7. Collaterals (more remote than brothers and sisters) (C.C. 896)
-- No special rule; estate is divided evenly among all aunts and uncles.
*n.b.* Art. 902 Rights of the State -- In the absence of heirs the state gets the estate.
Art. 891 Devolution of Separate Property; Parents and Brothers and Sisters
If the deceased leaves no descendants but is survived by a father, mother, or both, or descendants from them, the brothers and sisters or their descendants succeed to the separate property of the deceased subject to a usufruct in favor of the surviving parent or parents.
Art. 892 Devolution of Separate Property in Absence of Parents or in Absence of Brothers and Sisters
If the deceased leaves neither descendants nor parents, his brothers or sisters or descendants from them succeed to his separate property in full ownership to the exclusion of other ascendants or collaterals.
If the deceased leaves neither descendants nor brothers or sisters, nor descendants from them, his parent or parents succeed to the separate property to the exclusion of other ascendants and collaterals.
→ Each sibling takes from their own line. (e.g. maternal/paternal)
→ Whole siblings take from both lines.
→ Surviving parent gets usufruct over half-sibling’s share.
Art. 893 Brothers and Sisters Related by Half-Blood
The property that devolves to the brothers or sisters is divided among them equally, if they are born of the same parents. If they are born of different unions, it is equally divided between the paternal and maternal lines of the deceased: brothers or sisters fully related by blood take in both lines and those related by half-blood take each in his own line. If there are brothers and sisters on one line only, they take the entirety to the exclusion of all relations in the other line.
Art. 894 Separate Property; Rights of the Surviving Spouse
If the deceased leaves neither descendants, nor parents, nor brothers, sisters, or descendants from them, his spouse not judicially separated from him shall succeed to his separate property to the exclusion of other ascendants and other collaterals.
Art. 895 Separate Property; Rights of other Ascendants
If a deceased leaves neither descendants, nor brothers, sisters, or descendants from them, nor parents, nor spouse not judicially separated, his other ascendants succeed to his separate property. If the ascendants in the paternal and maternal lines are in the same degree, the property is divided into two equal shares, one of which goes to the ascendants on the paternal side, and the other to the ascendants on the maternal side, whether the number of ascendants on each side be equal or not. In this case, the ascendants in each line inherit by heads.
If there is in the nearest degree but one ascendant in the two lines, such ascendant excludes ascendants of a more remote degree.
Art. 896 Separate Property; Rights of Other Collaterals
If the deceased leaves neither descendants, nor brothers, sisters or descendants from them, nor parents, nor spouse not judicially separated, nor other ascendants, his other collaterals succeed to his separate property. Among the collateral relations, the nearest in degree excludes all others. If there are several in the same degree, they take equally and by heads.
C. COMMUNITY PROPERTY
Art. 889 Devolution of Community Property
If the deceased leaves no descendants, his surviving spouse succeeds to his share of the community property.
Paline v. Heroman (1946) (Not good law anymore)
→ Questionable decision holding surviving widow to be next heir after all of the children of the deceased spouse renounced the succession. The court denied the granddaughter’s petition to receive her father and uncle’s renounced portions. Article 964 contradicts the court.
Art. 964 Accretion Upon Renunciation
(accrete) The rights of an intestate successor who renounces accrete to those Renouncing persons who would have succeeded to them if the successor had predeceased the decedent.
Art. 946 Devolution of Succession Rights of Successor Declared Unworthy
(devolve) Successor declared unworthy; rights devolve as if he predeceased Representation the decedent
→ No debts, but must collate gifts
-- There is a slight distinction between these two articles. Accretion allows other non- renouncing heirs to add renounced portion to their own.
Patton v. Cities of Philadelphia ands New Orleans (1846)
“Where a man marries and afterwards contracts a second marriage without the first having been dissolved, the community property acquired during the coexistence of said two marriages belongs exclusively and in equal shares to said two wives as long as the second wife is in good faith.”
Legal Wife ----------- Deceased Husband --------------Putative Wife
(1/2) │ (bad faith) (1/2)
Daughter
Ø
Prince v. Hopson (1956)
Putative wife, legal wife and daughter dispute community of deceased husband’s putative marriage when both putative spouses were in good faith. Court decided to give 1/2 to daughter, 1/4 to legal wife, and 1/4 to the putative wife. Equity wouldn’t allow the court to cut out the putative wife completely. (Art. 96 putative spouse) I personally question this since the one who brings the impediment is presumed to be in bad faith.
Legal Wife ----------- Deceased Husband --------------Putative Wife
(1/4) │ (good faith) (1/4)
Daughter
(1/2)
Art. 890 Usufruct of Surviving Spouse
If the deceased spouse is survived by the descendants, the surviving spouse shall have a usufruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testament. The usufruct terminates when the surviving spouse dies or remarries, whichever occurs first.
Benefits:
1) Not required to past security But see C.C. art. 1514
2) Not taxable
-- Art. 535 et seq. Usufruct
-- Usufruct is a real right of a limited duration on the property of another.
-- Usufructuary has right to use and enjoy the fruits of the property.
-- Usufructuary becomes owner of consumables but must pay the naked owner their value at the end of the usufruct.
-- Usufructuary can use and enjoy nonconsumables but cannot alienate them.
-- Art. 1493 Forced Heirs
-- 23 years of age or younger; or
-- Descendants in first degree of any age that are incapable of administrating their own estates; or
-- Representation of a predeceased forced heir may take place if the forced heir would have been 23 or younger at the decedent’s death
→ Forced heirship comes into play when a decedent tries to exclude certain heirs.
→ All children used to be forced heirs as well as parents and spouses. (Now: must be child under 23, etc…)
Legitime – Forced portion; forced portion heir is entitled to get.
Disposable Portion – Remainder of estate after forced portion.
-- Art. 1495 Amount of Forced Portion and Disposable Portion
One heir: Forced portion is 1/4 of estate.
Disposable portion is 3/4 of estate.
More than one heir: Forced portion is 1/2 of estate.
Disposable portion is 1/2 of estate.
-- Art. 1499 Usufruct to Surviving Spouse – (Governs Testaments)
The decedent may grant a usufruct to the surviving spouse over all or part of his property, including the forced portion, and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of usufruct. The usufruct shall be for life unless expressly designated for a shorter period.
A usufruct over the legitime in favor of the surviving spouse is a permissible burden that does not impinge upon the legitime, whether it affects community property or separate property, whether it is for life or a shorter period, whether or not the forced heir is a descendent of the surviving spouse, and whether or not the usufructuary has the power to dispose of nonconsumables.
→ Still need to argue whether spouse gets usufruct
→ Can give usufructuary rights to dispose of non-consumables
(Must be express. i.e. – In the will)
-- Art. 1514 Usufruct of Surviving Spouse Affecting Legitime; Security
A forced heir may request security when a usufruct in favor of a surviving spouse affects his legitime and he is not a child of the surviving spouse. A forced heir may also request security to the extent that a surviving spouse’s usufruct over the legitime affects separate property. (Must affect legitime)
→ This shows up in the section on Donations, son one could argue that it only affects testaments. (Not likely to win.)
→ Written as if conventional usufructs are not affected.
To Get Security:
1) Heir must be non-issue of the marriage
2) Must affect separate property
Succession of Chauvin (1972) – “Will Didn’t Say Length of Usufruct” – The mere confirmation of a usufruct in a will does not make it testamentary. The spouse still has a legal usufruct. At that time, everyone wanted their usufruct to be a legal usufruct for the benefits thereunder. Today, under art. 1499, the usufruct would be for life.
Then:
Legal Usufruct Testamentary Usufruct
- Terminates on remarriage - Terminates at death
- Not obligated to post security - Must post security
- Not liable for inheritance taxes - Owes inheritance taxes
- Doesn’t violate the legitime - Impinges on the legitime of forced heirs
Succession of Moore (1888) – “Basis for Waldron” – A spouse is entitled to the legal usufruct unless a testamentary disposition is adverse to the legal usufruct. The testator can circumvent the legal usufruct by exhausting the estate by means of donations mortis causa to persons other than the spouse. If you state usufruct in the will, you confirm a legal usufruct.
Succession of Waldron (1975) – “Daughter Left Out of Will” – The question arose as to whether Waldron, in trying to give his wife more than the law would allow, deprived her of a legal usufruct. The Court said that when a testator gives the surviving spouse more than the law allows, he has not made an adverse disposition. Rather, he has confirmed a legal usufruct.
Note: The legislature later enacted articles 890 and 1499 to get rid of confirmation of a legal usufruct. An exception might be if article 890 is actually quoted in the will.
Usufruct of Forced Portion – Until Remarriage
Usufruct of Disposable Portion – For Life
Today:
Legal Usufruct Testamentary Usufruct
- Terminates on remarriage - Terminates at death
- Not obligated to post security - Must post security
- Not liable for inheritance taxes - Owes inheritance taxes
- Doesn’t violate the legitime - Impinges on the legitime of forced heirs
** Chauvin and Waldron are overruled to the extent that usufruct terminates at remarriage
** Usufruct can be given over separate property.
→ Usufructuary can use the consumables.
** Prior to 1996, law in effect
Winsberg v. Winsberg (1957) – “Shoestore” – Decedent gave rights to his spouse in will that she didn’t have under testate or intestate succession. A decedent can leave everything to his wife. The disposable portion goes entirely to her, but under art. 890 she only has usufruct over the forced portion. Normally, she wouldn’t have usufruct but the court said the testator confirmed the legal usufruct by giving more than allowed by law to the wife.
(Wife could have made it easy and just renounced to get full usufruct because of intestacy.) (Not good law)
Adverse Disposition – When a spouse tries to leave nothing to the surviving spouse.
- He leaves everything to someone else.
- He expressly states that she shall not have usufruct.
- He doesn’t give all, but a substantial portion to her and forced heir has to go after portion in an action in reduction.
Summary:
- When the testament confirms the laws of intestacy, the disposition is not adverse to the interests of the surviving spouse and the legal usufruct attaches.
- When the testator gives the surviving spouse more than the law allows, he has not made an adverse disposition.
- When the testator makes an excessive donation in favor of a person other than the surviving spouse, the usufruct is defeated to the extent the disposition exhausts the estate.
Right of Reversion
Art. 897 Ascendant’s Right to Inherit Immovables Donated to Descendant.
Ascendants, to the exclusion of all others, inherit the immovables given by them to their children or their descendants of a more remote degree who died without posterity, when these objects are found in the succession.
If these objects have been alienated, and the price is yet due in whole or in part, the ascendants have the right to receive the price. They also succeed to the right of reversion on the happening of any event which the child or descendant may have inserted as a condition in his favor in disposing of those objects.
Right of Reversion requirements:
1) Must be immovable;
2) Donated by ascendant;
3) Deceased must not have descendants; and
4) Item must be found in succession
Art. 898 Reversion of Property Subject to Encumbrances and Succession Debts.
Ascendants inheriting the things mentioned in the preceding article, which they have given their children or descendants who die without issue, take them subject to all mortgages which the donee may have imposed on them during his life.
Also ascendants exercising the right of reversion are bound to contribute to the payment of the debts of the succession, in proportion to the value of the objects given.
Art. 899 Nearest in Degree Among More Remote Relations
Among the successors in each class the nearest relation to the deceased, according to the articles, is called to succeed.
Art. 900 Degrees of Relationship
The propinquity of consanguinity is established by the number of generations, and each generation is called a degree.
→ i.e. “nearness of blood”
Degrees:
Direct Line – Count down from the ancestor or up from the descendant, excluding the starting point.
Collateral Line – Count up to the common ancestor and back down, excluding the starting point.
Art. 901 Direct and Collateral Relationship
The series of degrees forms the line. The direct line is the series of degrees between persons who descend from another. The collateral line is the series of degrees between persons who do not descend pone from another, but who descend from a common ancestor.
In the direct line, the number of degrees is equal to the number of generations between the heir and the deceased. In the collateral line, the number of degrees is equal to the number of generations between the heir and the common ancestor, plus the number of generations between the common ancestor and the deceased.
Art. 902 Rights of the State
In default of blood, adopted relations, or a spouse not judicially separated, the estate of the deceased belongs to the state.
III. ILLEGITIMATE CHILDREN – Arts. 198–211
Art. 178 Children are Either Legitimate or Illegitimate
Legitimate Children (art. 179)
→ Born or conceived during marriage (art. 179)
→ Subsequent marriage of father and mother and formal or informal acknowledgment as their children (either before or after marriage)
(arts. 198 & 199)
→ Legitimation by notarial act stating that it is the intention of the parent to such child (art. 200)
→ Adopted children (art. 214)
Illegitimate Children (art. 180)
→ Formal Acknowledgment (Qualified Illegitimate)
-- Notarial declaration of acknowledgment (art. 203)
-- Registration in the birth or baptism records (art. 203)
→ Filiation (Qualified Illegitimate)
-- Filiation by the child or on his behalf (within 19 years of child’s birth or 1 year from date of alleged parent’s death, whichever comes first)
Parent living – preponderance of evidence
Parent deceased – clear and convincing evidence
→ Informally Acknowledged
Succession of Brown (1980) – “Unacknowledged Heirs” – Four unacknowledged heirs challenged the constitutionality of old c.c. 919 which basically left unacknowledged heirs out of intestate successions. The Court found the article unconstitutional because the respondents were being discriminated against because of their birth status. The overruled article was replaced by articles 203-209. Thus, equal rights are given to qualified illegitimates.
Succession of Clivens (1983) – “Furtherance of Brown” – The Court held that Brown should be applied retroactively to 1977. (the time of Trimble)
→ Filiated children could always take from the succession. See c.c. arts. 184-209.
IV. ABSENT PERSONS – “The Living Dead” – Arts. 47-59
Absent – whereabouts of person unknown
Presumed Dead – plane crash; no body found
Art. 47 Curator of an Absent Person’s Property
An absent person is one who has no representative in this state and whose whereabouts are not known and cannot be ascertained by diligent effort.
When an absent person owns property in this state, the court may, upon petition of any interested party and a showing of necessity, appoint a curator to manage the property of the absent person.
To have curator appointed a petitioner must show:
1) Property – Absentee must own movable or immovable property in the state.
2) Necessity – Petitioner must show “necessity” of appointment to protect the absentee’s, petitioner’s or a third party’s interests.
3) Inability to Locate – Petitoner must show an effort to locate or futility.
Art. 48 Powers, Rights, and Duties of Curator
The curator has power of administration and disposition over the absent person as provided by legislation.
When the absent person is a spouse in community, the curatorship is limited to his separate property.
Community Property – When an absent spouse has the exclusive right or must concur in the management of the community, the other spouse may be authorized to manage if it is in the best interest of the family. (arts. 2355 & 2355.1)
Duties of Curator:
1) Initiate Proceeding – Must initiate proceeding for a declaration of death when absentee has no known heirs and is presumed dead. (art. 51)
2) Accounting – Must account for his management and restore the property at termination. (art. 52)
3) Notice of Termination – Upon knowledge of the termination of the curatorship, curator must file notice in the curatorship proceeding that his authority to manage the property has ceased. (art. 53)
A. TERMINATION OF CURATORSHIP
Termination of Right: Curatorship terminates when (art. 50):
1) Absentee appoints a person to represent him.
2) Absentee’s whereabouts become known.
3) Absentee dies.
Termination by Declaration of Death: (art. 51)
Presumption of Death: If absentee is absent 5 years, he is presumed to be dead. An interested person may petition the court for a judgment declaring death and fixing the date of death. (art. 51)
(*n.b.* The date of death fixed by the court applies to life insurance and opening of succession.)
Amending Judgment: The judgment declaring death can be amended if there is clear and convincing evidence that the date fixed was wrong. Previous successors are bound to restore the estate to new successors, but can keep the fruits. (art. 56)
Art. 49 Legal Capacity of Absent Person
The establishment of the curatorship does not deprive the absent person of his capacity to make juridical acts. Nevertheless, his acts of disposition of
immovable property are not effective towards third persons and the curator unless filed for registry in the public records of the parish in which the immovable property is located.
Art. 50 Termination of Curatorship of Right
The curatorship of property of the absent person terminates of right when he appoints a person to represent him in this state, when his whereabouts become known, or when he dies.
Art. 51 Termination by Judgment of Declaration of Death
The curatorship of the property of the absent person also terminates when a judgment of declaration of death is rendered.
When an absent person has no known heirs and is presumed dead, it shall be the duty of the curator to initiate proceedings for a declaration of death.
Art. 52 Effects of Termination of Curatorship
Upon termination of the curatorship, the curator is bound to account for his management and to restore the property to the formerly absent person or his successors.
Art. 53 Validity of Acts of Curator after Termination of the Curatorship
When the curator acquires knowledge of the termination of his curatorship, he is bound to file a notice in the curatorship proceeding that his authority to manage the property of the formerly absent person has ceased.
Acts of administration or disposition made by the curator after the curatorship has terminated are valid towards third persons unless notice of the termination of the curatorship has been filed in the curatorship proceeding.
Art. 54 Absent Person; Declaration of Death
One who has been an absent person for five years is presumed to be dead. Upon petition by an interested party, the court shall render judgment declaring the death of the absent person and shall determine the date on which the absence commenced and the date of death.
Art. 55 Declaration of Death; Effect
The succession of the person declared dead shall be opened as of the date of death fixed in the judgment, and his estate shall devolve in accordance with the law of successions.
Art. 56 New Evidence as to Time of Death
If there is clear and convincing new evidence establishing a date of death other than that determined in the judgment of declaration of death, the judgment shall be adjusted accordingly.
Persons previously recognized as successors are bound to restore the estate to the new successors but may keep the fruits they have gathered.
B. REAPPEARANCE OF ABSENTEE
Recovery of Property and Inheritance: If absentee reappears, he can recover his property and inheritance in the condition at the time of his reappearance from successors and transferees by gratuitous title. (art. 57 & 59)
→ Alienated Property: He can recover the net proceeds from alienated property.
→ Encumbered Property: He can recover for the diminution in value.
Limitation: If a third person acquires an interest in an immovable from a recognized heir in a judgment of possession, the absentee has only two (2) years to object. (art. 59, cmt. (d))
Recovery of Fruits: Absentee cannot recover fruits from good faith possessor. Absentee cannot demand removal of improvement to the property made by the good faith possessor, and he must pay for them. Absentee may demand removal of improvements made by the bad faith possessor. (arts. 57 & 59, cmts (c))
Art. 57 Reappearance of Absent Person; Recovery of his Property
If a person who has been declared dead reappears, he shall be entitled to recover his property that still exists in the condition in which it is found from those who took it as his successors or from their transferees by gratuitous title. He may also recover the net proceeds of things alienated and for the diminution of the value of things that has resulted from their encumbrance.
Art. 58 Succession Rights of Person Presumed Dead or Declared Dead. (Revised 2001)
A person who is presumed dead at a time a succession would have been opened in his favor cannot be a successor. The estate of the deceased devolves as if that person were dead at the time of the opening of the succession.
Note Comment (c):
If a person presumed to be dead is called to a succession as the only heir or universal legatee, the succession passes to persons who succeed in his default. If the person who is presumed to be dead or has been declared dead concurs with other heirs, he is represented by his descendants.
Art. 59 Reappearance of Absent Person; Recovery of his Inheritance
If the person who is presumed to be dead or who has been declared dead reappears, he shall be entitled to recover his inheritance in the condition in which it is found from those who succeeded in his default and from their transferees by gratuitous title. He may also recover the net proceeds of things alienated and for the diminution of the value of things that has resulted from their encumbrance.
In re Boyd (1998) – “Sister Disappears in TX” – Petitioner sought to have his sister declared dead. Article 54 says the Court shall render judgment after five (5) years. La.C.C.P. 5094 requires reasonable due diligence to locate an absent person before a declaration of death is made. The threshold, however, isn’t very high.
V. COMMENCEMENT OF SUCCESSION – Arts. 934-938
Art. 934 Commencement of Succession
Succession occurs at the death of a person.
(Remember: Succession ids the transmission of the estate of the decedent to his successors. Art. 871)
-- Art. 939 Existence of Successor
A successor must exist at the death of the decedent.
A. COMMORIENTES
→ Prior to the revision of 1997, certain presumptions were applied when reciprocal heirs died in a common disaster.
→ Presumptions
- If all under 15, the oldest survived
- If all over 60, the youngest survived
- If some were younger than 60 and some were 60 or older, then those under 60 survived
- If some were under 15 and some were 15 or older but younger than 60, the latter survived
- If all were 15 or older but younger than 60, the youngest survived
Succession of Langles (1901) – “Sinking of the La Bourgogne”
A mother and daughter were lost at sea when their ship sank off the coast of Newfoundland. Commorientes led to the presumption that the mother perished before the daughter causing a problem with the execution of their wills which reciprocally favored each other. Angele Marie Langles, the daughter stated that if her mother died before her, she wanted the balance of the estate to “support” the hospital built by the mother. Unfortunately, the mother never established the hospital because it was to be “built” in the event Angele predeceased her. The court graciously allowed the memorial for Angele to be built, although the balance passed to the intestate heirs.
Commorientes Repealed
→ Now, article 939 says that “a successor must exist at the death of the decedent.”
→ And, article 31 provides that “one claiming a right that has accrued to another person is bound to prove that such person existed at the time when the right accrued.”
B. SEIZEN
Seizen – Le mort saisit le vif – “The dead give rights to the living.”
Art. 935 Acquisition of Ownership; Seizen
Immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them.
Prior to the qualification of a succession representative only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent.
Ownership v. Seizen:
Ownership: The successor acquires full ownership of the property from the decedent at his death.
Seizen: The seized heir acquires the rights of possession of the property of the decedent at his death, which includes the standing and rights attributable to the decedents.
Who Gets Seizen?
Prior to the revision: (Then)
1) Succession Representative (La. C.C.P. 3211)
2) Forced Heirs (La. CC art. 1608 – repealed)
3) Universal Successor (La. CC art. 1609 – repealed)
4) Intestate Heirs (La. CC art. 1611 – repealed)
After the revision: (Now)
1) Succession Representative (La. C.C.P. 3211)
2) Universal Successor (La. CC art. 935)
i.e. - heir, universal legatee, or general legatee
Qualities of Seizen:
Benefits:
1) An heir can take possession without any formalities
a) Physical possession
b) Continuity of possession for acquisitive prescription (e.g. tacking onto the good faith of decedent)
*n.b.* This is no longer a benefit after the revision. It was the main reason for disputes over who would get seizen.
2) Seized heir can bring actions that the decedent had a right to bring and shall defend action against the decedent.
Limitations:
1) Inheritance tax law limits the rights of heirs to possess and maintain the right to renounce.
- taxes are automatic if item has been alienated
- can’t possess until taxes are paid
2) A succession representative is deemed to have seizen
Tulane v. Board of Assessors (1905) – “Tulane’s Taxes” – Seizen is not the same as ownership and taxes are based on ownership. Since executor has seizen and Tulane is tax exempt; Tulane owes no taxes.
Baten v. Taylor (1979) – “Suspensive Will” – Suspensive conditions are allowed in a will. The seized heir remains seized until the suspensive condition is fulfilled. The suspensive condition shall not exceed six (6) months. (La. CC art. 1521—Vulgar Substitutions) There is no conflict between the suspensive condition and the laws of seizen since there is no gap in seizen.
Simpson v. Colvin (1962) – “Blue Heaven Bar” – Succession Representatives are allowed to eject /evict heirs from property in order to sell it and pay the debts of the estate.
C. POSSESSION
Art. 3424 Acquisition of Possession
To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.
Must have:
1) intent to possess
2) actual possession
Art. 936 Continuation of Possession of Decedent
The possession of the decedent is transferred to his successors, whether testate or intestate, and if testate, whether particular, general, or universal legatees.
Universal Successor: continues the possession of the decedent with all its advantages and defects, and with no alteration in the nature of possession.
- general and universal legatees; intestate heirs
- universal successor “steps into the shoes” of the decedent
- takes on the character of the decedent (i.e. good faith/bad faith)
- no need for tacking
Particular Successor: may commence a new possession for purposes of acquisitive prescription.
- possession starts anew
- maintains his character or, if in good faith, may take on the bad faith of the decedent
- must tack
Art. 938 Exercise of Succession Rights
A. Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole.
- Successor may not necessarily be getting what he thinks he is.
- Succession representative can still sell “sold” item in the administration of the estate.
- Purchaser is safest when he can see the seller’s judgment of possession before the sale.
B. If a successor exercises his rights of ownership after the qualification of a succession representative, the effect of that exercise is subordinate to the administration of the estate.
Acquisitive Prescription for Immovables:
→ Ten Years: (good faith)
- Possession for 10 years
- Good Faith
- Just Titles
- Thing Susceptible of Acquisitive Prescription
e.g. city property is not susceptible
→ Thirty Years: (bad faith)
- Possession for 30 years
- Bad Faith
Acquisitive Prescription for Movables:
→ Three Years: (good faith)
- Possession for 3 years
- Good Faith
- Act Sufficient to Transfer Ownership
→ Ten Years: (bad faith)
- Possession for 10 years
- Bad Faith
Other Relevant Articles:
Art. 3506 General Definitions of Terms
The universal successor represents the person of the deceased, and succeeds to all his rights and charges.
The particular successor succeeds only to the rights appertaining to the thing which is sold, ceded or bequeathed to him.
Art. 3442 Tacking of Possession
The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.
Art. 3473 Prescription of Ten Years
Ownership and other real rights in immovables may be acquired by the prescription of ten years.
Art. 3480 Good Faith
For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses.
Art. 3481 Presumption of Good Faith
Good faith is presumed. Neither error of fact nor error of law defeats this presumption. This presumption is rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses.
Art. 3482 Good Faith at the Commencement of Prescription
It is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of prescription of ten years.
Art. 3483 Just Title
A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated.
VI. LOSS OF SUCCESSION RIGHTS (INCAPACITY AND UNWORTHINESS)
Arts. 939-946
A. INCAPACITY
Art. 939 Existence of Successor
A successor must exist at the time of the death of the decedent.
Art 940 Same; Unborn Child
An unborn child conceived at the death of the decedent and thereafter born alive shall be considered to exist at the death of the decedent.
Consider old Art. 954 – The child in its mother’s womb is considered as born for all purposes of its own interest; it takes all successions opened in its favor since its conception, provided it be capable of succeeding at the moment of its birth.
*n.b.* -- The difference between the two articles allows argument for the succession rights of zygotes. (i.e. “test-tube babies”)
Also: Art. 1474 Unborn Children; Capacity to Receive
To be capable of receiving by donation inter vivos, an inborn child must be in utero at time the donation is made.
To be capable of receiving mortis causa, an unborn child must be in utero at the time of death of the decedent.
In either case, the donation has effect only if the child is born alive.
Estate of Kolacy (N.J. 2000) – “Posthumous Twins” – Twins were conceived in Petri dish according to the donor husband’s wishes after he died of leukemia. There was no mention of it in his will. Twins were born eighteen (18) months after his death, and the mother subsequently sought to have them declared intestate heirs. The Court agreed that it was constitutional to limit the amount of time afterborn children could inherit, but also said in part:
“[A] fundamental policy of the law should be to enhance and enlarge the rights of each human being to the maximum extent possible, consistent with the not to intrude unfairly upon the interests of other persons.”
Today:
La. R.S. 391.1 Child Conceived After Death of Husband
A. Notwithstanding the provisions of Civil Code Articles 184 and 185 to the contrary and in addition to the provisions of Civil Code Article 179, any child conceived after the death of the decedent, who specifically authorized in writing his surviving spouse to use his gametes, shall be deemed the legitimate child of such decedent, provided the child was born to the surviving spouse, using the gametes of the decedent, within two years of the death of the decedent.
B. Any heir whose interest in the succession of the decedent will be reduced by the birth of a child conceived as provided in Subsection A of this Section shall have one year from the birth of such child within which to bring an action to disavow paternity.
B. UNWORTHINESS
Declaration of Unworthiness (art. 941)
A Successor Shall be Declared Unworthy if:
1) He is convicted of a crime involving the intentional killing, or attempted killing, of the decedent; or
2) He is judicially determined to have participated in the intentional, unjustified killing, or attempted killing, of the decedent.
→ An action to declare a successor unworthy shall be brought in the succession proceedings of the decedent.
→ An executive pardon or pardon by operation of law does not affect the unworthiness of a successor.
Unworthiness – Who Brings Action? (art. 942)
→ An action to declare a successor unworthy may be brought by:
1) A person who would succeed in the place of the unworthy successor; or
2) A person who would succeed in concurrence with the unworthy successor; or
3) A person who claims through (1) or (2).
→ When the action can be brought by a minor or an interdict, the court or any family member (via motion), may appoint an attorney to represent the minor or interdict for purposes of investigating and pursuing an action to declare the successor unworthy.
Art. 942 Persons Who May Bring Action (Revised in 2001)
A. An action to declare a successor unworthy may be brought only by a person who would succeed in place of or in concurrence with the successor to be declared unworthy, or by one who claims through such a person.
B. When a person who may bring the action is a minor or an interdict, the court, on its own motion, or on the motion of any family member, may appoint an attorney to represent the minor or interdict for purposes of investigating and pursuing an action to declare a successor unworthy.
Defenses to Unworthiness:
1) No conviction for intentional killing (art. 941)
2) No judicial determination of participation in intentional, unjustified, or attempted killing (art. 941)
3) Reconciliation or forgiveness by the decedent (art. 943)
→ Burden of proof is on the unworthy successor.
4) Prescription – Must bring action within:
a) intestate successors – 5 years from death
b) testate successors – 5 years from probate of will
Effects of Declaration of Unworthiness (art. 945)
1) Deprived of his right to succeed to that decedent.
2) Cannot serve as an executor, trustee, administrator, attorney or other fiduciary, either if designated in a testament or under intestacy.
3) Loss of rights over decedent’s property:
a) For Property Unworthy Heir Possesses:
Must return decedent’s property, along with the fruits and products, and must account for impairment in value caused by encumbrances or for failing to preserve as prudent administrator.
b) For Property Transferred or Over Which Possession Was Lost:
Must account for the value of the property at the time of the transfer, along with fruits and products, and must account for impairment in value caused by encumbrances or for failing to preserve as a prudent administrator.
c) For Property That Was Alienated, Encumbered, or Leased:
1. If by onerous title and no fraud – transaction not affected
2. If by gratuitous title – donation may be annulled
For Future Reference:
To prevent an unworthy heir from selling what’s not theirs to receive:
1) Immovables: Attach Lis Pendens
2) Movables: File a Writ of Sequestration
Who Takes in Place of Unworthy Heir?
Intestate Succession:
- Rights devolve as if he had predeceased the decedent.
Testate Succession:
- Rights devolve in accordance with provisions of testamentary accretion as if he had predeceased the testator.
→ Regardless an unworthy successor and other parent cannot claim a legal usufruct over the property inherited by their child.
Art. 946 Devolution of Succession Rights of Successor Declared Unworthy (Rev. 2001)
A. If the decedent died intestate, when a successor is declared unworthy his succession rights devolve as if he had predeceased the decedent; but if the decedent died intestate, then the succession rights devolve in accordance with the provisions for testamentary accretion as if the unworthy successor had predeceased the testator.
B. When the succession rights devolve upon a child of the successor who is declared unworthy, the unworthy successor and the other parent of the child cannot claim a legal usufruct upon the property inherited by their child.
California-Western v. Sanford (1981) – “Insane Wife Killer” – Louisiana insurance statute says that someone “criminally responsible” cannot collect benefits. This does not require the same high standard of proof that would be required for criminal conviction. The children have a right to determine the effect of his insanity in relation to his “criminal responsibility in a court of competent jurisdiction (a civil court).
Crain v. Crain (1st Cir. 1999) – “Unworthy Mother” – Then: Kids could not represent mother that had been or would definitely be declared unworthy. Now: Kids represent unworthy parent as if the parent had predeceased them. Unfortunately for the kids, the old article was in effect when the crime took place and that is the law that was applied.
VII. ACCEPTANCE AND RENUNCIATION – Arts. 947-967
A. GENERAL PRINCIPLES – Arts. 947-956
Art. 947 Right of the Successor to Accept or Renounce
A successor is not obligated to accept rights to succeed. He may accept some of those rights and renounce others.
Art. 948 Minor Successor Deemed to Accept
A successor who is a minor is deemed to accept rights to succeed, but his legal representative may renounce on behalf of the minor when expressly authorized by the court.
→ acceptance is “automatic”
Art. 949 Death of Decedent as a Prerequisite to Acceptance or Renunciation
A person may not accept or renounce rights to succeed before the death of the decedent.
→ Then: Old code used to say heir couldn’t accept before it “falls.”
→ Now: A second degree heir can accept before succession “falls” to him.
Art. 950 Knowledge Required of Successor as Prerequisite to Acceptance or Renunciation
An acceptance or renunciation is valid only if the successor knows of the death of the person to be succeeded and knows that he has right as a successor. It is not necessary that he know the extent of those rights or the nature of his relationship to the decedent.
→ An heir only needs to know he has rights.
e.g. “My aunt died. I don’t know if she left me anything, but I’ll accept if she did.”
Art. 951 Nullity of Premature Acceptance or Renunciation
A premature acceptance or renunciation is absolutely null.
Art. 952 Probate or Annulment of Testament After Acceptance or Renunciation of Succession
An acceptance or renunciation of rights to succeed by intestacy is null if a testament is subsequently probated. An acceptance or renunciation of rights to succeed in a testate succession is null if the probate of the testament is subsequently annulled or the rights are altered, amended, or revoked by a subsequent testament or codicil.
Art. 953 Legacy Subject to a Suspensive Condition
A legacy that is subject to a suspensive condition may be accepted or renounced either before or after the fulfillment of the condition.
Art. 954 Retroactive Effects of Acceptance and Renunciation
To the extent that he accepts rights to succeed, a successor is considered as having succeeded to those rights at the moment of death of the decedent. To the extent that a successor renounces rights to succeed, he is considered never to have had them.
Art. 956 Claims of Successor who is a Creditor of the Estate
A successor may assert a claim that he has as a creditor of the estate whether he accepts or renounces his succession rights.
B. ACCEPTANCE – Arts. 957-962
Old Law:
1) Simple and unconditional
→ Could be express or tacit (mitigated by 9:1421)
→ Successors became personally liable for the debts of the succession
- heirs became “seized” and could take possession immediately
- heirs eventually became leery of taking possession b/c of liability
2) With benefit of inventory
→ Successors shielded from personal liability
9:1421 Acceptance of Succession; Benefit of Inventory
(Old Law) Basically said that is a successor prepared an inventory and descriptive list, he was only liable for decedent’s debts to the extent of the value of the property that he received.
New Law (art. 857):
1) Formal (replaced express)
→ Successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding.
2) Informal (“replaced” tacit)
→ Successor does some act that clearly implies his intention to accept.
Art. 957 Formal or Informal Acceptance
Acceptance may be either formal or informal. It is formal when the successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding. It is informal when the successor does some act that clearly implies his intention to accept.
Art. 958 Informal Acceptance; Use or Disposition of Property
Acts of the successor concerning property that he does not know belongs to the estate do not imply an intention to accept.
Always ask:
Are they acting in the capacity of an heir or of a custodian?
Sounds stupid, but remember:
The disposal of property that doesn’t belong to the estate is not affected by these articles.
Question: What if the heir disposes of property that he believes is part of the estate but, in actuality, is not?
Answer: Code doesn’t address this. Result is arguable.
Art. 959 Informal Acceptance; Act of Ownership
An act of ownership that can be done only as a successor implies acceptance, but an act that is merely administrative, custodial, or preservative does not imply acceptance.
Art. 960 Donative Renunciation Deemed Acceptance
A renunciation shall be deemed to be an acceptance to the extent that it causes the renounced rights to devolve in a manner other than that provided by law or by the testament if the decedent died intestate.
Art. 961 Effect of Acceptance
Acceptance obligates the successor to pay estate debts in accordance with the provisions of this Title and other applicable laws.
Art. 962 Presumption of Acceptance
In the absence of a renunciation, a successor is presumed to accept the succession rights. Nonetheless, for good cause the successor may be compelled to accept or renounce.
Bradley v. Union National Life Ins. Co. (1st Cir. 1978) – “Daughter Kept Furniture”
Decedent’s daughter didn’t accept succession, but she disposed of some clothing and jewelry. She also kept furniture and called it her own.
The Court said: Consider intent and actions when looking for tacit acceptance. Disposition and possession show tacit acceptance.
Reed v. Taylor (4th Cir. 1988) – “Son tried to Skip Dad”
Reed tried to claim his g’ma’s property through transmission saying that his father had never accepted her succession. His father had debts, so Reed tried to avoid a connection.
Unfortunately for Reed, the Court said: Reed’s father tacitly accepted by moving into the house and paying off the mortgage.
Succession of Menendez (1959) – “Heirs Try to Find Will”
Acting on behalf of the estate is not tacit acceptance.
For Future Reference:
→ It is safest to plead your incapacity of heir while filing or doing certain acts for a succession so as not to take on the qualities of a successor.
McClelland v. Clay (5th Cir. 1984) – “Hooker Heir”
Decedent’s concubine argued that because brother took money from a common fund to pay for the funeral he tacitly accepted the succession and subsequently owed her a note promised by the decedent.
The Court said: The brother paid back the fund and thus showed no intent of using decedent’s funds. Further, “an act of piety towards one’s relations is not considered an acceptance.” (also see C.C. 1001)
C. RENUNCIATION – Arts. 963-967
→ Renunciation:
- Renunciation must be express and in writing (art. 963).
→ Accretion upon Renunciation:
- For intestacy, accretes to those who would have succeeded to them if the successor had predeceased the decedent (art. 964).
- For testacy, in the absence of a governing testamentary disposition, accretes to those who would have succeeded if the legatee had predeceased the decedent (art. 965).
- Need to consider lapsed legacies
Lapsed Legacies:
→ Testamentary accretion takes place when a legacy lapses. A legacy lapses when, among others, the legatee predeceases or renounces (arts. 1589 & 1590).
→ When a particular or general legacy lapses, accretion takes place in favor of the successor, under the testament, who would have received the thing if the legacy had not been made (art. 1591).
→ When a legacy to a joint legatee lapses, accretion takes place ratably in favor of the other joint legatees (art. 1592).
→ Exception: If a legatee is a child or sibling of the testator, or a descendant of a child or sibling of the testator, to the extent that legacy lapses, accretion takes place in favor of his descendants by roots who were in existence at the time of the testator’s death (art. 1593).
*n.b.* -- Lapsing is often used to circumvent donation taxes.
-Art. 1589 Lapse of Legacies
A legacy lapses when:
(1) The legatee predeceases the testator.
(2) The legatee is incapable of receiving at the death of the testator.
(3) The legacy is subject to a suspensive condition, and the condition can no longer be fulfilled or the legatee dies before fulfillment of the condition.
(4) The legatee is declared unworthy.
(5) The legacy is renounced, but only to the extent of the renunciation.
(6) The legacy is declared invalid.
(7) The legacy is declared null, as for example, for fraud, duress, or undue influence.
-Art. 1590 Testamentary Accretion
Testamentary accretion takes place when a legacy lapses.
Accretion takes place according to the testament, or, in the absence of a governing testamentary provision, according to the following Articles.
-Art. 1591 Accretion of Particular and General Legacies
When a particular or a general legacy lapses, accretion takes place in favor of the successor who, under the testament, would have received the thing if the legacy had not been made.
-Art. 1592 Accretion Among Joint Legatees
When a legacy to a joint legatee lapses, accretion takes place ratably in favor of the other joint legatees, except as provided in the following Article.
-Art. 1593 Exception to Rule of Testamentary Accretion
If a legatee, joint or otherwise, is a child or sibling of the testator, or a descendant of a child or sibling of the testator, then to the extent that the legatee's interest in the legacy lapses, accretion takes place in favor of his descendants by roots who were in existence at the time of the decedent's death. The provisions of this Article shall not apply to a legacy that is declared invalid or is declared null for fraud, duress, or undue influence.
Art. 963 Requirement of Formality
Renunciation must be express and in writing.
Art. 964 Accretion Upon Renunciation in Intestate Successions
The right of an intestate successor who renounces accrete to those persons who would have succeeded to them if the successor had predeceased the decedent.
Art. 965 Accretion Upon Renunciation in Testate Successions (Amended 2001)
In the absence of a governing testamentary disposition, the rights of a testate successor who renounces accrete to those persons who would have succeeded to them if the legatee had predeceased the decedent.
Art. 966 Acceptance or Renunciation
A person to whom succession rights accrete may accept or renounce all or part of the accretion. The acceptance or renunciation of the accretion need not be consistent with his acceptance or renunciation of other succession rights.
D. PAYMENT OF ESTATE DEBTS
Art. 1415 Estate Debts; Administrative Expenses
Estate debts are debts of the decedent and administrative expenses. Debts of the decedent are obligations of the decedent or those that arise as a result of his death, such as the cost of his funeral and burial. Administration expenses are obligations incurred in the collection, preservation, management, and distribution of the estate of the decedent.
Art. 1416 Liability of Universal Successors to Creditors (AMENDED)
A. Universal successors are liable to creditors for the payment of the estate debts in proportion to the part which each has in the succession, but each is liable only to the extent of the property received by him, valued as of the time of receipt.
B. A creditor has no action for payment of an estate debt against a universal successor who has not received property of the estate.
Other Provisions:
→ Successors are paid in the same order as other creditors (art. 1418).
- No lesser nor greater rights
→ In an administration, creditors have rights to collect the debt after payment has been made to other creditors or successors (art. 1419):
1) Assets remaining under administration
2) Successors who received property
3) Unsecured creditors who received payment
Responsiblitity Among Successors for Estate Debts:
→ The rules are suppletive, but cannot impair the rights of creditors (art. 1420).
- The testator cannot try to free the heir from administrative expenses in will
→ Estate debts are charged to:
1) Property of the estate (Debts of Decedent)
2) Fruits and products from the property
of the estate (Administrative Expenses)
Estate Debts:
Debts of the Decedent (art. 1423) Administration Expenses (art. 1424)
(1) Charged ratably to property in (1) Charged ratably to fruits and products
general or universal legacies and of property in general or universal legacies
property that develops by intestacy, and property that devolves by intestacy.
valued as of death.
(2) Charged ratably to fruits and products (2) Charged ratably to property in general or
of property in general or universal universal legacies and property that
legacies and property that devolves devolves by intestacy, valued as of death.
by intestacy.
(3) Charged ratably to fruits and products (3) Charged ratably to fruits and products of
of property in particular legacies. property in particular legacies.
(4) Charged ratably to property in (4) Charged ratably to property in
particular legacies. particular legacies.
Art. 1422 Debts Attributable to Identifiable or Encumbered Property
Estate debts that are attributable to identifiable property or to the production of its fruits or products are charged to that property and its fruits and products.
Also, when the decedent has encumbered property to secure a debt, the debt is presumptively charged to that property and its fruits and products. The presumption may be rebutted, by a preponderance of evidence that the secured is not attributable to the encumbered property. (e.g. mortgage)
Comment (a) – an example is a farm to which expenses are incurred for fertilizer, pesticide, or repairs to machinery.
Aurienne v. Mt. Olivet (1923) – “Donative Renunciation” – The Aurienne brothers wanted their father’s renunciation of their aunt’s estate in favor of another aunt declared a donative renunciation because then article 960 (Donative Renunciation Deemed Acceptance) wouldn’t allow it since it would impinge on their legitime. The Court disagreed: “[A] renunciation made in consideration only of love and affection for the beneficiary or beneficiaries, or as a matter of gratitude, is not to be considered as made for a price or the value received.”
U.S. v. Brumfield (1998) – “3.5 Mil Tax Bill” – Noel Addison renounced his succession rights in order to avoid taxes. The U.S. gov’t said the taxes attached at the moment of the decedent’s death. (art. 946) The Court examined whether Louisiana adheres to the Transfer Theory (Gov’ts’ version) or the Acceptance-Rejection Theory (Brumfield’s version).
The Court said Louisiana followed the Acceptance-Rejection Theory. Unfortunately, although Addison’s renunciation was valid, he nonetheless tacitly accepted the succession by taking a “price” for the renunciation. (the “hold-harmless” agreement)
i.e. → Receiving payment for a renunciation constitutes tacit acceptance of the succession.
Sidebar Note: The Court noted that the fact that Addison lived in the house was not tacit acceptance because he lived there prior to the decedent’s death.
-Art. 952 Probate or Annulment of Testament After Acceptance or Renunciation of Succession
An acceptance or renunciation of rights to succeed by intestacy is null if a testament is subsequently probated. An acceptance or renunciation of rights to succeed in a testate succession is null if the probate of the testament is subsequently annulled or the rights are altered, amended, or revoked by a subsequent testament or codicil.
→ If the will is recently discovered, then it’s not the same as probate. Therefore, the will is not automatically invalid.
→ A change in circumstances allows an heir to choose again whether to accept or renounce. (e.g. a new will is discovered)
→ An heir can make a donation, but first he must accept then make the donation in proper form (authentic).
Succession of Williams (1982) – “Aunt Screws Nephews” – (NOT GOOD LAW) – A brother renounced a succession in favor of his kids while his sister acknowledged that she would only receive half of the succession. Later, the sister changed her mind and tried to get the entire succession through accretion.
The Court said the brother’s judgment of possession was invalid because (at that time) a living person could not be represented. The sister, however, could not claim through accretion since she willingly took part in the judgment of possession proceedings.
Succession of Neuhauser (1991) – “Creditor Tries to Reopen Succession”
To reopen a succession a creditor must show:
1) Debtor acted fraudulently
2) The renunciation caused injury to the creditor
→ The Court said it won’t look solely at the insolvency, but…
It has to look at his insolvency to find injury to the creditor.
Therefore: The creditor must show that the debt will not somehow be paid.
→ The key word is “solely.” If the creditor will eventually be paid, then he has not been injured.
Succession of Wagner (La. App. 5th Cir. 2000) – “ExWife – Child Payments”
Proof that an heir knew of his debt at the time of the renunciation is enough to show fraud.
Art. 967 Acceptance of Succession by Creditor
A creditor of a successor may, with judicial authorization, accept succession rights in the successor’s name if the successor has renounced them in whole or in part to the prejudice of his creditor’s rights. In such a case, the renunciation may be annulled in favor of the creditor to the extent of his claim against the successor, but it remains effective against the successor.
→ Somewhat like an oblique action (art. 2044)
-- Art. 962 Presumption of Acceptance
In the absence of a renunciation, a successor is presumed to accept the succession rights. Nonetheless, for good cause the successor may be compelled to accept or renounce.
Note: Art. 967 doesn’t address when an heir refuses to accept, but art. 962 allows a succession to be opened for “good cause.”
VIII. COLLATION – Arts. 1227-1288
Art. 1227 Collation; Definition
The collation of goods is the supposed or real return to the mass of the succession which an heir makes of property which he received in advance of his share or otherwise, in order that such property may be divided together with the other effects of the succession.
→ Presumptions underlying collation:
1) Gifts to kids are an advance of their inheritance.
2) Parents’ intentions are that all of their children share equally.
→ Collation is historically tied to forced heirship.
→ Who can demand collation?
The right to demand collation is confined to descendants of the first degree who qualify as heirs, and only applies with respect to gifts made within three (3) years prior to the decedent’s death, and valued as of the date of the gift. Any provision of the Civil Code to the contrary is hereby repealed. (art. 1235)
→ Who owes collation?
A. Children or grandchildren, coming to the succession of their fathers, mothers, or other ascendants, must collate what they have received from them by donation inter vivos, directly or indirectly, and they cannot claim the legacies made to them by such ascendants unless the donations and legacies have been made to them to them expressly as an advantage over their coheirs and besides their portion.
B. This rule takes place whether the children or their descendants succeed to their ascendants as legal or testamentary heirs. (art. 1227)
Intent to Collate:
→ Collation is presumed. (art. 1230)
→ If the donor has formally and unequivocally expressed his will that what he gave was an advantage or extra part (or other equivalent terms), it shall not be collated unless the value of the object given exceeds the disposable portion. (arts. 1231 & 1233)
- The will does not have to say, “this is an advance portion.”
- (unless clause): Forced heirs portion is always protected.
→ Declaration may be made (art. 1232):
1) In the instrument where such disposition is made
2) After the gift is made by authentic act (notary +2)
3) In the donor’s will (will affect donations before and after will was executed)
Who Must Collate?
Art. 1228 Collation by Descendants
A. Children or grandchildren, coming to the succession of their fathers, mothers, or other ascendants, must collate what they have received from them by donation inter vivos, directly or indirectly, and they cannot claim the legacies made to them by such ascendants unless the donations and legacies have been made to them expressly as an advantage over their coheirs and besides their portion.
B. This rule takes place whether the children or their descendants succeed to their ascendants as legal or as testamentary heirs.
i.e. → Grandkids can collate through representation
Art. 1238 Grandchildren; Collation of Donations Made by Grandparent After Death of Parent
A. To make descendants liable to collation, as prescribed in the preceding Articles, they must appear in the quality of heirs to the succession of the ascendants from whom they immediately have received the gift or legacy.
B. Therefore, grandchildren, to whom a gift was made or a legacy left by their grandfather or grandmother, after the death of their father or mother, are obliged to collate, when they are called to the inheritance of the grandfather or grandmother, jointly with the other grandchildren, or by representation with their uncles or aunts, brothers or sisters of their father or mother, because it is presumed that their grandfather or grandmother had intended to make the gift, or leave the legacy by anticipation.
Art. 1239 Grandchildren; Right to Donations Made by Grandparent During Life of Parent
A. But gifts made or legacies left to a grandchild by his grandfather or grandmother during the life of his father, are always reputed to be exempt from collation.
B. The father, inheriting from the grandfather, is not liable to collate the gifts or legacies left to his child.
i.e. → Gifts from grandparents to grandkids, made during the parent’s lifetime, are not subject to collation.
Art. 1240 Grandchildren; Collation of Donations Made by Grandparent to Parent
In like manner, the grandchild, when inheriting in his own right from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted the succession; but if the grandchild comes in only by right of representation, he must collate what had been given to his father, even though he should have renounced his inheritance.
Note: To determine whether article 1238 or article 1240 applies, on emust know whether the grandchild is coming to the succession in his own right or through representation.
Art. 1241 Collation by Great Grandchildren and More Remote Descendants
What has been said in the three preceding articles, of grandchildren inheriting from their grandfather or grandmother, must be understood of the great- grandchildren and other lawful descendants called to inherit from their ascendants, either in their own name or by right of representation.
Jordan v. Filmore (1929) – “O’Neill Case” – Mrs. Miles, in her will, stated that “my beloved daughter Pearl Miles Reilly… is to have and to hold and fall heir to all my belongings whatsoever, real estate, moneys, personal property, wherever located, and I further name and appoint her my executrix.” A granddaughter of Mrs. Miles through her other, predeceased daughter demanded collation according to 1501 which states that donations made in a will must be collated unless made expressly as an advantage or extra portion. But…
Judge O’Neill, in Wemple v. Eastham fashion, judicially amended the article that collation is presumed unless the legacy of all the estate is left to one child. This is a sufficient expression of the decedent’s intent to dispense with collation.
→ Later: Art. 1501. Repealed by Acts 1997, No. 706, § 1
Succession of Higgins (1973) – “Share and Share Alike” – The decedent willed her entire estate to her sons, James and William to “share and share alike.” William predeceased his mother and his seven children through representation filed an opposition when the executor awarded 3/4 of the estate to James.
The Court said, “share and share” alike is not a joint legacy since it shows that the mother did not intend to favor one son over the other. Therefore, William’s children may demand half by collation through representation.
Succession of Odum (2000) – “Secret Ohio Child” – An unknown child in Ohio wants 1/10 of the whole estate which includes a trust set up specifically for the other children.
→ An action in reduction for 1/10 of estate distributed in the will.
→ An action in collation for 1/5 of estate distributed inter vivos by the trust.
The Court said that collation can be dispensed with in the will if done so in an unequivocal manner. (e.g. 4 kids specifically named)
→ Dicta in Odum suggests that the will, if it gives a forced heir an advantage, this advantage applies to donations in the will and inter vivos.
Jordan/Higgins: Donations were in the will.
Odum: Donations were inter vivos.
Succession of Fakier (1988) – “Ring Donation” – Manual gifts made inter vivos are collated if not mentioned as an advantage in the will. Annuities, by their operation, are donations mortis causa. The naming of a beneficiary to the annuity is an indication of an advantage. Therefore, annuities are not collated.
Succession of Hurd (1988) – “Bankrupt Heir” – A trustee of the heir’s bankruptcy sought collation from the forced heirs in order to collect debt.
The La. Court said creditors cannot demand collation, but… the Supreme Court said the Supremacy Clause of the Constitution allows U.S. Bankruptcy Code to overrule Civil Code. The creditor can demand collation.
→ Today: article 1235 doesn’t mention creditors, but 1237 confines the right to demand collation to heirs in the first degree.
Also Look At:
Art. 1504 Reduction of Donations, Exclusive Right of Forced Heirs
An action to reduce excessive donations may be brought only after the death of the donor, and then only by a forced heir, or an assignee of any of them who has a conventional assignment, made after the death of the decedent, of the right to bring action.
→ A creditor can be the assignee.
Succession of Simms (1979) – “G’ma Divides by Half” – Collation is not required when a grandchild comes to the succession in his own right and not through representation. If the grandchild just accepts his legacy, he is coming through his “own right.”
→ Coming in “own right” – no collation
→ Coming through representation – collation
Miller v. Miller (discussed in case) says that if a grandchild establishes himself as a forced heir, then he must collate gifts.
Grandchamps v. Delpeuch (1844) – “Dowry Collated” – Renunciation relieves the heir of the obligation to collate unless the donation given impinges on the legitime. Renunciation also excludes the renouncing heir from the succession. (Decision is codified in art. 1237)
Note: Since a renouncing heir doesn’t have to collate and is excluded from the succession, an heir will want to determine if he’ll get more from acceptance or renunciation.
Note: Art. 1500 Forced Portion in Cases of Judicial Divestment, Disinherison, or Renunciation of Succession Rights
When a forced heir renounces his legitime, is declared unworthy, or is disinherited, his legitime becomes disposable and the forced portion is reduced accordingly. The legitime of each remaining forced heir is not affected.
Art. 1500. Forced portion in cases of judicial divestment, disinherison, or renunciation of succession rights
When a forced heir renounces his legitime, is declared unworthy, or is disinherited, his legitime becomes disposable and the forced portion is reduced accordingly. The legitime of each remaining forced heir is not affected.
Example → If 3 out of 4 forced heirs renounce, only one forced heir remains and the forced portion is reduced to 1/4 from 1/2.
Avoiding Collation Through Renunciation (from Grandchamps):
Art. 1237 Renouncing Heir's Right to Donations Not Exceeding Disposable Portion
If children, or other lawful descendants holding property or legacies subject to be collated, should renounce the succession of the ascendant, from whom they have received such property, they may retain the gift, or claim the legacy to them made, without being subject to any collation.
If, however, the remaining amount of the inheritance should not be sufficient for the legitimate portion of the other children, including in the succession of the deceased the property which the person renouncing would have collated, had he become heir, he shall then be obliged to collate up to the sum necessary to complete such legitimate portion.
Property Subject to Collation (Arts. 1243-1250):
→ Generally: Collation is due for what has been expended by the father and mother to procure an establishment of their legitimate descendant coming to their succession, or for the payment of their debts. (art. 1243)
→ Advantages, such as when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, or has spent money to improve his son’s estate. (art. 1248)
→ Immovable property which has been destroyed by the fault or negligence of the donee (value ascertained at the time of the opening of the succession). (art. 1250)
*n.b.* → This article isn’t applied very often. Nevertheless, the last sentence of this article conflicts with article 1235 (“…valued as of the date of the gift. Any provision of the Civil Code to the contrary is hereby repealed.”)
Some might argue that 1250 is the exception to 1235.
Property Exempt from Collation:
→ Expenses of board, support, education and apprenticeship, and marriage presents which do not exceed the disposable portion. (art. 1244)
→ Things given by a father, mother or other ascendant, by their own hands, to one of their children for his pleasure or other use. (art. 1245)
→ This article would seem to include everything since anything could be for the kid’s pleasure. The legislature, however, seemed to mean traditional gifts such as birthdays and Christmas.
2 classes:
1) Obligations of the parent (e.g. education)
2) Social custom (e.g. birthday gifts)
Property Exempt from Collation (Continued):
→ Profits made from contracts with his ascendant to whom he succeeds unless the contracts, at the time of their being made, gave the heir some indirect advantage. (art. 1246)
→ Partnership made without fraud with the deceased, if the conditions of the partnership are proved by an authentic act. (art. 1247)
→ Immovable property which has been destroyed by accident, while in possession of the donee and without his fault prior to the opening of the succession. (art. 1250)
Art. 1249 Wages for Services to Ascendant
The obligation of collation does not exclude the child or descendant coming to the succession of his father, mother or other ascendant, from claiming wages which may be due to him for having administered the property of the ascendant, or for other services.
i.e. → An heir who is forced to collate can at least get paid for taking care of the property.
Succession of Pierson (1976) – “20 Collation Claims” – Only five were examined.
Funeral bill – A parent’s payment of funeral expenses of a deceased child is an advantage to her g’kids of that child that must be collated.
Insurance Policy – Where the parent was the named beneficiary of deceased son’s policy, the premiums paid by her are not collated. (Does not apply to all policies.)
Monies to David – Unpaid loans must be collated.
Car – Generally collatable, but the burden is on the one demanding collation to prove the value at the time of the donation.
Rental Value of Apartment – There is a difference between ownership and use for purposes of collation. The latter does not collate. (CHECK THIS AT REVIEW)
Succession of Hoffpauir (1984) – “Acadia/Vermillion Land” – Siblings questioned the sales by their deceased mother to their brother. Property can be subject to collation if the price paid is greater than 1/4 but less than fair market value.
Also look at:
Art. 1248 Advantages Other than Donation
The advantage which a father bestows upon his son, though in any other manner than by donation or legacy, is likewise subject to collation. Thus, when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, for [or] has spent money to improve his son's estate, all that is subject to collation.
→ This article is a catch-all that requires any advantage to be collated.
Art. 2444 Sale of Immovable by Parents to Children; Disguised Donation
The sale of immovable property by parents to their children may be attacked by the forced heirs as a donation in disguise if those heirs can prove that no price was paid or that the price paid was less than one fourth of the value of the immovable at the time of the sale.
Succession of Moore v. Moore (1980) – “Aunt’s Land Collation” – To determine whether the forced heir from whom collation is sought paid such a “very low price” for immovable property so as to require collation, the claimant must prove the fair market value of the property at the time of the transaction.
i.e. → The court must know the value of the property at the time of the gift, and the burden of proof is on the petitioner.
Note: The price an heir pays for an ascendant’s property can be augmented by services to that ascendant to determine total priced paid. Succession of Hoover, 517 So. 2d 471 (La. App. 1st Cir. 1987).
Succession of Gomez (1953) – “15 Years of Checks” – Not all manual gifts are exempt from collation. The redactors would have specifically said “all manual gifts are exempt” if that is what they truly intended.
Note: The court did not rule on whether a formal act was required to dispense with collation or if the decedent could tacitly dispense with it. (see next case)
Also Note: Court will look at parental gifts that are “usual in this country.”
Succession of Skye (1982) – “10k B-Day Check” – Collation can be tacitly dispensed. A donee, however, must show by clear and convincing evidence that the decedent intended to dispense with collation. In such a case, a formal act is not necessary.
Form Needed to Dispense with Collation of Manual Gift
→ Code of 1808:
→ Provision similar to Art. 1538: Donation of Movables, Form Required
A donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before described.
Such an act ought to contain a detailed estimate of the effects given.
→ Provision similar to Art. 1232: Method of Declaring Dispensation From Collation
The declaration that the gift or legacy is made as an advantage or extra portion may be made in the instrument where such disposition is contained, or afterwards by an act passed before a notary and two witnesses, or in the donor’s last will and testament.
→ Code of 1825:
→ Provision similar to Art. 1539: Manual Gift
The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.
When Collation May Occur
Succession of Deledernier (1966) – “Property Left Out” – Property found after the judgment of possession is distributed through a reopened and amended succession. This does not cause a nullity. (La. Civ. P 3393)
→ Collation cannot be demanded after J.O.P. unless there is a nullity in the succession proceedings.
→ Action for Nullity (La. C.C.P. Arts. 2001-2006) (see end of outline)
→ Action to Reopen Succession (La. C.C.P. Art. 3393) (see end of outline)
Succession of Webre (1965) – “Simulated Sale” – The prescription for collation is 10 years because it is a “personal action.”
→ Prescription begins to run at the decedent’s death.
How Collations are Made (Arts. 1251-1288)
→ Collation are made in kind or by taking less. (art. 1251)
- In Kind: delivered by the donee to the succession (art. 1252)
- Taking Less: donee diminishes the portion he inherits in proportion to the value of the item he received (art. 1253)
→ Must consider whether item is movable or immovable. (art. 1254)
(Ask this first to determine how item is valued.)
Baillio v. Baillio (1826) – “Community Prop. Collated” – When donation has been made from community property, the collation shall be by halves. Half going to the heirs and half going to the surviving spouse.
Collation of Immovable Property (Arts. 1255-1258)
→ As long as the property is in his possession, donee has the choice to make collation in kind or by taking less.
- Donor can mandate that collation be made in kind, but with the consent of all other heirs, donee can still take less. (art. 1255)
→ If donee collates in kind, he can:
- Recover useful expenses that improved the estate in proportion to the increased value. (art. 1256)
- Recover necessary expenses for preservation of the estate without regard to enhanced value. (art. 1257)
- Remove works erected for his pleasure if he can do so without injuring the estate. (art. 1258)
Destruction or Deterioration of Immovable when Collated in Kind (Arts. 1260-1262)
→ When caused by his fault or negligence, donee is accountable for deteriorations and damage that have diminished its value. (art. 1260)
→ If property is destroyed:
- After donee elects to collate in kind but without the fault of the donee, the succession bears the loss and no collation is due. (art. 1261)
- After donee elects to take less, the donee bears the loss and the collation is still due. (art. 1262)
→ Even if it is not the donee’s fault.
→ If property is destroyed in part, it shall be collated in its state. (art. 1262)
Alienation of Immovable
Art. 1281 Alienation of Immovable by Donee by Onerous Title; Creation of Real Right in Immovable by Donee or Operation of Law
A. If the donee who owes the collation has alienated by onerous title the immovable given to him, the coheirs shall not have the right to claim the immovable in the hands of the transferee.
B. If the donee who owes the collation has created a real right by onerous title in the immovable given to him or such right has been created by operation of law since the donee received the immovable, the coheirs may claim the immovable in the hands of the donee but subject to such real right as has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property.
Art. 1282 Purchaser's Retention of Immovable Upon Payment of Collations
The third purchaser or possessor of the real estate subject to collation may avoid the effect of the action of revendication, by paying to the coheirs of the donee, to whom the collation is due, to wit: the excess of the value of the property above the disposable portion, if the donation has been made as an advantage or extra portion, or the whole of the value thereof, if the donation has been made without this provision, by fulfilling in this respect all the obligations by which the donee himself was bound towards the coheirs.
→ Third parties are protected by paying the value in excess of the disposable portion to the collation.
Collation by Taking Less
→ If the donee elects to take less, collation must be made according to the value of the immovable property at the opening of the succession, with deductions made for necessary and useful expenses. (art. 1269)
→ Generally, if donee does not have property, he shall still be liable to collate it as above. (art. 1270, but see arts. 1271-72)
→ Cohiers can request that property in the succession be sold to satisfy their portion or coheirs can choose certain property. (art. 1273)
- Coheir must elect in 3 days if property is to be sold. Sale shall be made at public auction. (arts. 1274-75)
Collation of Movables
→ Movables must be collated by taking less according to the value at the time of the donation. (art. 1283)
→ Collation of money may be made in kind or by taking less, at the option of the donee. (art. 1265)
→ Collating heir can require coheirs to pay themselves the collation due in money.
(arts. 1286-87)
*n.b.* Notice the difference in valuation:
→ Immovables – valued at the opening of succession
→ Movables – valued at the time of donation
→ The rationale for the different times of valuation is that immovables tend to appreciate in value while movables tend to depreciate.
→ The time chosen by the redactors allows for the likeliest greatest value for collation purposes.
→ Sometime this backfires with movables. (e.g. stock, antiques)
Art. 1281 Alienation of Immovable by Donee by Onerous Title; Creation of Real Right in Immovable by Donee or Operation of Law
A. If the donee who owes the collation has alienated by onerous title the immovable given to him, the coheirs shall not have the right to claim the immovable in the hands of the transferee.
B. If the donee who owes the collation has created a real right by onerous title in the immovable given to him or such right has been created by operation of law since the donee received the immovable, the coheirs may claim the immovable in the hands of the donee but subject to such real right as has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property.
Art. 1282 Purchaser's Retention of Immovable Upon Payment of Collations
The third purchaser or possessor of the real estate subject to collation may avoid the effect of the action of revendication, by paying to the coheirs of the donee, to whom the collation is due, to wit: the excess of the value of the property above the disposable portion, if the donation has been made as an advantage or extra portion, or the whole of the value thereof, if the donation has been made without this provision, by fulfilling in this respect all the obligations by which the donee himself was bound towards the coheirs.
Collation of Fruits
Succession of Doll v. Doll (1992) – “ – The right to reimbursement and the duty to collate fruits of an immovable collated in kind are not reciprocal. Rather, the right to reimbursement, limited as it is to expenses which preserve or improve the value of the immovable, simply serves to place the donee in a position of parity with respect to her coheirs. The donee is required to account for the fruits from the opening of the succession.
However… The fruits emanating from the donation of an immovable which has been by collation in kind must restored only from the date of judicial demand.
See Art. 1569 Revocation or Dissolution, Donee's Liability for Fruits
In all cases, in which the donation is revoked or dissolved, the donee is not bound to restore the fruits by him gathered previous to the demand for the revocation or rescission.
But in case of the non-fulfillment of condition [conditions], which the donee is bound to fulfill, if it be proved to have proceeded from his fault, he may be condemned to restore the fruits by him received since his neglect to fulfill the conditions.
Other Collation Articles:
Art. 1229 Reasons for Collation
The obligation of collating is founded on the equality which must be naturally observed between children and other lawful descendants, who divide among them the succession of their father, mother and other ascendants; and also on the presumption that what was given or bequeathed to children by their ascendants was so disposed of in advance of what they might one day expect from their succession.
Art. 1230 Presumption in Favor of Collation
Collation must take place, whether the donor has formerly [formally] ordered it, or has remained silent on the subject; for collation is always presumed, where it has not been expressly forbidden.
Art. 1231 Express Exclusion of Collation; Extra Portion
But things given or bequeathed to children or other descendants by their ascendants, shall not be collated, if the donor has formally expressed his will that what he thus gave was an advantage or extra part, unless the value of the object given exceed the disposable portion, in which case the excess is subject to collation.
Art. 1232 Method of Declaring Dispensation from Collation
The declaration that the gift or legacy is made as an advantage or extra portion may be made in the instrument where such disposition is contained, or afterwards by an act passed before a notary and two witnesses, or in the donor's last will and testament. Unless expressly stated to the contrary, a declaration of dispensation from collation made in the last will and testament of the donor shall be effective as a dispensation from collating donations made both before and after execution of said testament.
Art. 1233 Sufficiency of Declaration
The declaration that the gift or legacy is intended as an advantage or extra portion, may be made in other equivalent terms, provided they indicate, in an unequivocal manner, that such was the will of the donor.
Art. 1234 Reduction of Donations Exceeding Disposable Portion; Calculation of Legitime
If, upon calculation of the value of advantages thus given, and of the other effects remaining in the succession, such remaining part should prove insufficient to give to the other children their legitimate portion, the donee would then be obliged to collate the sum by him received, as far as necessary to complete such portion, though he would wish to keep the donation, and renounce the inheritance; and in this calculation of the legitimate portion, the property given or bequeathed by the ascendants, not only to their children, but even to all other persons, whether relations or strangers, must be included.
Art. 1235 Persons Entitled to Demand Collation
The right to demand collation is confined to descendants of the first degree who qualify as forced heirs, and only applies with respect to gifts made within the three years prior to the decedent's death, and valued as of the date of the gift. Any provision of the Civil Code to the contrary is hereby repealed.
Art. 1242 Collation; Succession of Donor
The collation is made only to the succession of the donor.
Art. 1243 Expenditures Subject to Collation
Collation is due for what has been expended by the father and mother to procure an establishment of their legitimate descendant coming to their succession, or for the payment of his debts.
Art. 1244 Expenditures Not Subject to Collation
Neither the expenses of board, support, education and apprenticeship are subject to collation, nor are marriage presents which do not exceed the disposable portion.
Art. 1245 Manual Gifts
The same rule is established with respect to things given by a father, mother or other ascendant, by their own hands, to one of their children for his pleasure or other use.
Art. 1246 Profits From Contracts with Ascendant
The heir is not bound to collate the profits he has made from contracts made with his ascendant to whom he succeeds unless the contracts, at the time of their being made, gave the heir some indirect advantage.
Art. 1247 Share of Partnership with Ascendant
Also no collation is due for a partnership made without fraud with the deceased, if the conditions of the partnership are proved by an authentic act.
Art. 1248 Advantages Other than Donation
The advantage which a father bestows upon his son, though in any other manner than by donation or legacy, is likewise subject to collation. Thus, when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, for [or] has spent money to improve his son's estate, all that is subject to collation.
Art. 1250 Immovables Destroyed While in Possession of Donee
Immovable property, given by a father, mother or other ascendant, to one of their children or descendants, and which has been destroyed by accident, while in the possession of the donee and without his fault, previous to the opening of the succession, is not subject to collation.
If, on the contrary, it is by the fault or negligence of the donee that the immovable property has been destroyed, he is bound to collate to the amount of the value which the property would have had at the time of the opening of the succession.
Art. 1251 Methods of Making Collations
Collations are made in kind or by taking less.
Art. 1252 Collation in Kind, Definition
The collation is made in kind, when the thing which has been given, is delivered up by the donee to be united to the mass of the succession.
Art. 1253 Collation by Taking Less, Definition
The collation is made by taking less, when the donee diminishes the portion he inherits, in proportion to the value of the object he has received, and takes so much less from the surplus of the effects as is explained in the chapter which treats of partitions.
Art. 1254 Movables or Immovables
In the execution of the collation it must first be considered whether the things subject to it are movables or immovables.
Art. 1255 Collation of Immovables
If an immovable has been given, and the donee hath it in his possession at the time of the partition, he has the choice to make the collation in kind or by taking less, unless the donor has imposed on him the condition of making the collation in kind, in which case it can not be made in any other manner than that prescribed by the donor, unless it be with the consent of the other heirs who must be all of age, present or represented in this State.
Art. 1256 Immovables Collated in Kind; Reimbursement for Improvements
The donee who collates in kind an immovable, which has been given to him, must be reimbursed by his coheirs for the expenses which have improved the estate, in proportion to the increase of value which it has received thereby.
Art. 1257 Immovables Collated in Kind; Allowance for Expenses of Preservation
The coheirs are bound to allow to the donee the necessary expenses which he has incurred for the preservation of the estate, though they may not have augmented its value.
Art. 1258 Immovables Collated in Kind; Removal by Donee of Works Erected for His Pleasure
As to works made on the estate for the mere pleasure of the donee, no reimbursement is due to him for them; he has, however, the right to take them away, if he can do it without injuring the estate, and leave things in the same situation they were at the time of the donation.
Art. 1259 Kinds of Expenses Made on Immovable Property
Expenses made on immovable property are distinguished by three kinds: necessary, useful, and those for mere pleasure.
Necessary expenses are those which are indispensable to the preservation of the thing.
Useful expenses are those which increase the value of the immovable property, but without which the estate can be preserved.
Expenses for mere pleasure are those which are only made for the accommodation or convenience of the owner or possessor of the estate, and which do not increase its value.
Art. 1260 Deterioration and Damage to Immovable, Liability of Donee
The donee, who collates in kind the immovable property given to him, is accountable for the deteriorations and damage which have diminished its value, when caused by his fault or negligence.
Art. 1261 Destruction of Immovable After Election to Collate in Kind
If within the time and in the form prescribed in the chapter which treats of partitions, the donee has made his election to collate in kind the immovable property which has been given to him, and it is afterwards destroyed, without the act or fault of the donee, the loss is borne by the succession, and the donee shall not be bound to collate the value of the property.
Art. 1262 Partial Destruction of Immovable After Election to Collate in Kind
If the immovable property be only destroyed in part, it shall be collated in the state in which it is.
Art. 1263 Destruction of Immovable After Election to Collate by Taking Less
But if the immovable property is destroyed after the donee has declared that he wishes to collate by taking less, the loss is his, and he is bound to take less from the succession, in the same manner as if the property had not been destroyed.
Art. 1264 Creditors' Rights on Immovable Collated in Kind
When the collation is made in kind, the effects are united to the mass of the succession as they may be burdened with real rights created by operation of law or by onerous title. In such a case, the donee is accountable for the resulting diminution of the value of the immovable.
Art. 1266 Immovables in Excess of Disposable Portion; Collation in Kind
When the gift of immovable property, made to a lawful child or descendant, exceeds the portion which the ascendant could legally dispose of, the donee may make the collation of this excess in kind, if such excess can be separated conveniently.
Art. 1267 Immovables in Excess of Disposable Portion; Collation by Taking Less
If, on the contrary, the retrenchment of the excess over and above the disposable portion can not conveniently be made, the donee is bound to collate the excess by taking less, as is hereafter prescribed for the cases in which the collation is made of immovable property given him otherwise than as advantage or extra portion.
Art. 1268 Collation in Kind; Retention of Immovable Until Reimbursement of Expenses
The donee, who makes the collation in kind of the immovable property given to him, may keep possession of the same until the final reimbursement of the sums to him due for the necessary and useful expenses which he has made thereon, after deducting the amount of the damage the estate has suffered through his fault or neglect, as is before provided.
Art. 1269 Collation by Taking Less; Valuation of Immovable
When the donee has elected to collate the immovable property given him by taking less on the part which comes to him from the succession, the collation must be made according to the value which the immovable property had at the opening of the succession, a deduction being made for the expenses incurred thereon, in conformity with what has been heretofore prescribed.
Art. 1270 Voluntary Alienation or Negligent Loss of Immovables Subject to Collation
If the donee has voluntarily alienated the immovable property which has been given him, or if he has permitted it to be seized and sold for the payment of his debts, or if it has been destroyed by his fault or negligence, he shall not be the less bound to make the collation of it, according to the value which the immovable would have had at the time of the opening of the succession, deducting expenses, as is provided in the foregoing Article.
Art. 1271. Forced Alienation of Immovables Subject to Collation
But if the donee has been forced to alienate the immovable property, he shall be obliged to collate by taking less the price he has received from this sale and no more.
As, for example, if the donee shall be obliged to submit to a sale of the immovable for some object of public utility, or to discharge a mortgage imposed by the donor, or because the immovable was held in common with another person who has prayed for the sale in order to obtain a partition of it.
Art. 1272 Sale by Donee and Subsequent Destruction of Immovable Subject to Collation
If the immovable property which has been given has been sold by the donee, and afterwards is destroyed by accident in the possession of the purchaser, the donee shall only be obliged to collate by taking less the price he received for the sale.
Art. 1273 Collation by Taking Less; Coheirs' Election of Collation by Sale or In Kind
When the collation is made by taking less, the coheirs to whom the collation is due have a right to require a sale of the property remaining to the succession, in order to be paid from the proceeds of this sale, not only the collation which is due to them, but the part which comes to them from the surplus of these proceeds, unless they prefer to pay themselves the amount of the collation due to them by taking such movables and immovables of the succession as they may choose, according to the appraisement in the inventory, or the appraisement which serves as a basis to the partition.
Art. 1274 Failure of Coheirs to Make Timely Election
If the coheirs to whom the collation is made by taking less, wish that the effects of the succession be sold, in order that they may be paid what is due them, they are bound to decide thereon in three days from their being notified of the motion of the donee to that effect, before the judge of the partition, otherwise they shall be deprived of this right, and shall be considered as having consented to receive payment of the collation due them in effects and property of the succession, or otherwise from the hands of the donee.
Art. 1275 Payment of Collation by Sale of Succession Effects
When the coheirs, thus notified, require the sale of the effects of the succession to pay themselves the collation due them, the sale shall be made at public auction, in the same manner as when it is necessary to sell property held in common, in order to effect a partition.
Art. 1276 Payment of Collation with Property of Succession
If, on the contrary, the coheirs to whom the collation is due prefer to be paid the amount thereof in property and effects of the succession, or are divested of their right to require the sale of these effects, they shall be paid the amount of the collation in movables, immovables and other effects of the succession, in the same manner as is prescribed in the chapter which treats of partitions.
But in no case will these heirs be obliged to receive in payment credits of the succession.
Art. 1277 Payment of Collation by Donee Where Succession Effects Insufficient
If there are no effects in the succession, or not sufficient to satisfy the heirs to whom the collation is due, the amount of the collation, or the balance due on it, shall be paid them by the heir who owes the collation.
Art. 1278 Time and Security for Payment
This heir shall have one year to pay the sum thus by him due, if he furnish his coheirs with his obligation payable at that time, with eight per cent. interest, and give a special mortgage to secure the payment thereof, either on the immovable property subject to the collation, if it is in his possession, or in want thereof, on some other immovable property which may suit the coheirs.
Art. 1279 Rights of Coheirs Against Defaulting Heir; Foreclosure of Special Mortgage
If the heir, who has been allowed to furnish his obligation as mentioned in the preceding article, fails to fulfill his engagement at the expiration of the year granted to him, the heirs, in whose favor this obligation has been made, or their representatives, have a right to cause the property mortgaged to them to be seized and sold, without any appraisement, and at the price offered at the first exposure for sale.
Art. 1280 Privilege of Seizing Coheirs on Proceeds of Mortgage Sale
If the property thus seized and sold is the same which was subject to the collation, the coheirs seizing, or their representatives, shall be paid the amount of their debt due for the collation, by privilege and in preference to all the creditors of the donee, even to those to whom he may have mortgaged the property for his own debts or engagements, previous to the opening of the succession, saving to these mortgage creditors their recourse against other property of the donee.
Art. 1283 Collation of Movables
When movables have been given, the donee is not permitted to collate them in kind; he is bound to collate for them by taking less, according to their appraised value at the time of the donation, if there be any annexed to the donation. In default thereof, recourse may be had to other evidence to establish the value of these movables at the time of the donation.
Art. 1284 Donation of Movables as Absolute Transfer of Rights
Therefore the donation of movables contains an absolute transfer of the rights of the donor to the donee in the movables thus given.
Art. 1285 Collation of Money
The collation of money may be made in money or by taking less, at the choice of the donee who is bound to decide thereon, in the same manner as is prescribed for the collation of immovable property.
Art. 1286 Collation of Movables or Money by Taking Less; Payment in Money
If it be movables or money, of which the donee wishes to make the collation by taking less, he has the right of compelling his coheirs to pay themselves the collation due to them in money, and not otherwise, if there be sufficient in the succession to make these payments with.
Art. 1287 Collation of Movables or Money by Taking Less; Payment in Succession Effects
But if there is not sufficient money in the succession to pay such heirs the collation due to them, they shall pay themselves by taking an equivalent in the other movables or immovables of the succession, as is directed with respect to the collation of immovable property.
Art. 1288 Payment of Collation by Donee Where Succession Effects Insufficient
In case there be no property or effects in the succession to satisfy the collations due for movables or money given, the donee shall have, for the payment of the sum due to his coheirs, the same terms of payment as are given for the payment of the amount of collations of immovable property, and under the same conditions as are before prescribed.
Action for Nullity (La. C.C.P. Arts. 2001-2006)
- Art. 2001 Grounds in General
The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.
- Art. 2002 Annulment for Vices of Form; Time for Action
A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.
- Art. 2003 Same; Action Lost Through Acquiescence
A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.
- Art. 2004 Annulment for Vices of Substance; Peremption of Action
A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.
- Art. 2005 Annulment of Judgments; Effect of Appeal
A judgment may be annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.
A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.
An action of nullity does not affect the right to appeal.
- Art. 2006 Court Where Action Brought
An action to annul a judgment must be brought in the trial court, even though the judgment sought to be annulled may have been affirmed on appeal, or even rendered by the appellate court.
Action to Reopen Succession (La. C.C.P. Art. 3393)
- Art. 3393 Reopening of Succession
A. After a succession representative has been discharged, if other property of the succession is discovered or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be reopened. The court may reappoint the succession representative or appoint another succession representative. The procedure provided by this Code for an original administration shall apply to the administration of a reopened succession in so far as applicable.
B. After formal or informal acceptance by the heirs or legatees or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. The court may appoint or reappoint the succession representative, if any, or may appoint another, or new, succession representative. The procedure provided by this Code, for an original administration, shall apply to the administration of successions formally or informally accepted by heirs or legatees and in successions where a judgment of possession has been rendered, in so far as same is applicable.
C. The reopening of a succession shall in no way adversely affect or cause loss to any bank, savings and loan association or other person, firm or corporation, who has in good faith acted in accordance with any order or judgment of a court of competent jurisdiction in any previous succession proceedings.
Forced Heirship (Arts. 1493-1514):
Art. 1493 Forced Heirs; Representation of Forced Heirs
A. Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.
B. When a descendant of the first degree predeceases the decedent, representation takes place for purposes of forced heirship only if the descendant of the first degree would have been twenty-three years of age or younger at the time of the decedent's death.
C. However, when a descendant of the first degree predeceases the decedent, representation takes place in favor of any child of the descendant of the first degree, if the child of the descendant of the first degree, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent's death, regardless of the age of the descendant of the first degree at the time of the decedent's death.
D. For purposes of this Article, a person is twenty-three years of age or younger until he attains the age of twenty-four years.
Art. 1494 Forced Heir Entitled to Legitime; Exception
A forced heir may not be deprived of the portion of the decedent's estate reserved to him by law, called the legitime, unless the decedent has just cause to disinherit him.
Art. 1495 Amount of Forced Portion and Disposable Portion
Donations inter vivos and mortis causa may not exceed three-fourths of the property of the donor if he leaves, at his death, one forced heir, and one-half if he leaves, at his death, two or more forced heirs. The portion reserved for the forced heirs is called the forced portion and the remainder is called the disposable portion.
Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent's estate to which the forced heir would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor.
Art. 1496 Permissible Burdens on Legitime
No charges, conditions, or burdens may be imposed on the legitime except those expressly authorized by law, such as a usufruct in favor of a surviving spouse or the placing of the legitime in trust.
Art. 1497 Disposable Portion in Absence of Forced Heirs
If there is no forced heir, donations inter vivos and mortis causa may be made to the whole amount of the property of the donor, saving the reservation made hereafter.
Art. 1498 Nullity of Donation Inter Vivos of Entire Patrimony
The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence. If he does not do so, a donation of a movable is null for the whole, and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title, in which case the donation of such immovable shall not be declared null on the ground that the donor did not reserve to himself enough for his subsistence, but the donee is bound to return the value that the immovable had at the time that the donee received it. If the donee has created a real right by onerous title in the immovable given to him, or such right has been created by operation of law since the donee received the immovable, the donation is null for the whole and the donor may claim the immovable in the hands of the donee, but the property remains subject to the real right that has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property.
Art. 1499 Usufruct to Surviving Spouse
The decedent may grant a usufruct to the surviving spouse over all or part of his property, including the forced portion, and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of usufruct. The usufruct shall be for life unless expressly designated for a shorter period.
A usufruct over the legitime in favor of the surviving spouse is a permissible burden that does not impinge upon the legitime, whether it affects community property or separate property, whether it is for life or a shorter period, whether or not the forced heir is a descendant of the surviving spouse, and whether or not the usufructuary has the power to dispose of nonconsumables.
Art. 1500 Forced Portion in Cases of Judicial Divestment, Disinherison, or Renunciation of Succession Rights
When a forced heir renounces his legitime, is declared unworthy, or is disinherited, his legitime becomes disposable and the forced portion is reduced accordingly. The legitime of each remaining forced heir is not affected.
Art. 1502 Inability to Satisfy Legitime by Usufruct or Income Interest in Trust Only
Nevertheless, the legitime may not be satisfied in whole or in part by a usufruct or an income interest in trust. When a forced heir is both income and principal beneficiary of the same interest in trust, however, that interest shall be deemed a full ownership interest for purposes of satisfying the legitime if the trust conforms to the provisions of the Louisiana Trust Code governing the legitime in trust.
Art. 1503 Reduction of Excessive Donations
A donation, inter vivos or mortis causa, that impinges upon the legitime of a forced heir is not null but is merely reducible to the extent necessary to eliminate the impingement.
Art. 1504 Reduction of Donations, Exclusive Right of Forced Heirs
An action to reduce excessive donations may be brought only after the death of the donor, and then only by a forced heir, the heirs or legatees of a forced heir, or an assignee of any of them who has an express conventional assignment, made after the death of the decedent, of the right to bring the action.
Art. 1505 Calculation of Disposable Portion on Mass of Succession
A. To determine the reduction to which the donations, either inter vivos or mortis causa, are subject, an aggregate is formed of all property belonging to the donor or testator at the time of his death; to that is fictitiously added the property disposed of by donation inter vivos within three years of the date of the donor's death, according to its value at the time of the donation.
B. The sums due by the estate are deducted from this aggregate amount, and the disposable quantum is calculated on the balance, taking into consideration the number of forced heirs.
C. Neither the premiums paid for insurance on the life of the donor nor the proceeds paid pursuant to such coverage shall be included in the above calculation. Moreover, the value of such proceeds at the donor's death payable to a forced heir, or for his benefit, shall be deemed applied and credited in satisfaction of his forced share.
D. Employer and employee contributions under any plan of deferred compensation adopted by any public or governmental employer or any plan qualified under Sections 401 or 408 of the Internal Revenue Code, and any benefits payable by reason of death, disability, retirement, or termination of employment under any such plans, shall not be included in the above calculation, nor shall any of such contributions or benefits be subject to the claims of forced heirs. However, the value of such benefits paid or payable to a forced heir, or for the benefit of a forced heir, shall be deemed applied and credited in satisfaction of his forced share.
Art. 1507 Reduction of Legacies Before Donations Inter Vivos, Order of Reduction
Donations inter vivos may not be reduced until the value of all the property comprised in donations mortis causa is exhausted. The testator may expressly declare in the testament that a legacy shall be paid in preference to others, in which case the preferred legacy shall not be reduced until the other legacies are exhausted.
Art. 1508 Reduction of Donations Inter Vivos
When the property of the estate is not sufficient to satisfy the forced portion, a forced heir may recover the amount needed to satisfy his legitime from the donees of inter vivos donations made within three years of the date of the decedent's death, beginning with the most recent donation and proceeding successively to the most remote.
Art. 1509 Insolvency of a Donee
When a donee from whom recovery is due is insolvent, the forced heir may claim his legitime from the donee of the next preceding donation and so on to the donee of the most remote donation. A donee who pays the share of an insolvent donee is subrogated to the rights of the forced heir against the insolvent donee.
Art. 1510 Remunerative Donations, Extent of Reduction
The value of a remunerative donation is not included in the calculation of the forced portion, and the donation may not be reduced, unless the value of the remunerated services is less than two-thirds the value of the property donated at the time of the donation, in which event the gratuitous portion is included in the calculation and is subject to reduction.
Art. 1511 Onerous Donation, Extent of Reduction
The value of an onerous donation is not included in the calculation of the forced portion, and the donation may not be reduced, unless the value of the charges is less than two-thirds the value of the property donated at the time of the donation, in which event the gratuitous portion is included in the calculation and is subject to reduction.
Art. 1512 Retention of Fruits and Products of Donation by Donee Until Demand for Reduction
The fruits and products of property donated inter vivos belong to the donee except for those that accrue after written demand for reduction is made on him.
Art. 1513 Reduction in Kind When Property is Owned by the Donee or Successors by Gratuitous Title; Effects of Alienation by Donee
The action for reduction of excessive donations may be brought only against the donee or his successors by gratuitous title in accordance with the order of their donations, beginning with the most recent donation. When the donated property is still owned by the donee or the successors, reduction takes place in kind or by contribution to the payment of the legitime, at the election of the donee or the successors, who are accountable for any diminution in the value of the property attributable to their fault or neglect and for any charges or encumbrances imposed upon the property after the donation.
When the property given is no longer owned by the donee or his successors by gratuitous title, the donee and the successors must contribute to the payment of the legitime. A donee or his successor who contributes to payment of the legitime is required to do so only to the extent of the value of the donated property at the time the donee received it.
Art. 1514 Usufruct of Surviving Spouse Affecting Legitime; Security
A forced heir may request security when a usufruct in favor of a surviving spouse affects his legitime and he is not a child of the surviving spouse. A forced heir may also request security to the extent that a surviving spouse's usufruct over the legitime affects separate property.
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