Spousal Elective Share Requirements in Louisiana

At a glance

Requirements one by one

Louisiana uses ownership, usufruct, and a marital portion

Louisiana's complete current Civil Code table of contents contains no general elective-share article. The ordinary story begins with ownership: under § 2336, each spouse already owns a present undivided one-half of community property. Article 2356 terminates the legal community regime at death. The survivor's half is therefore an ownership interest, not a percentage elected from the decedent's estate.

Article 890 can add a usufruct—a right to use property and receive its fruits— over the decedent's community share when descendants survive and the decedent did not dispose of that share by testament. This usufruct ends when the spouse dies or remarries.

Louisiana forced heirship is also different from a spousal elective share. Article 1493(A) defines forced heirs as qualifying first-degree descendants, not the surviving spouse.

The marital portion is the substitute claim

The marital portion under arts. 2432 through 2437 is a separate claim when the decedent died rich in comparison with the surviving spouse. It applies under any matrimonial regime and is charged to the succession. A separated spouse may claim it only by proving that the separation occurred without the survivor's fault.

The amount depends on descendants:

• No children: one-fourth of the succession in ownership.
• Three or fewer children: one-fourth of the succession in life usufruct.
• More than three children: a child's share in life usufruct.

The marital portion may not exceed $1 million. A legacy left to the spouse and payments due because of the death are deducted. The six-article chapter states no additional deduction list or valuation formula.

Timing and succession administration

The marital-portion right is personal and nonheritable. It prescribes three years after death. Articles 2432 through 2437 state no elective-style filing, service, extension, withdrawal, or waiver procedure.

During succession administration, a spouse who appears entitled may demand a periodic allowance from the succession representative. The court handling the succession fixes the amount. If the final marital portion is smaller than the allowance already paid, the spouse is charged with the deficiency.

What trips people up

• One-half community ownership is not an elective share. It is the spouse's existing property interest under art. 2336.
• The Article 890 usufruct is conditional. Descendants must survive, the relevant community share must not have been disposed of by testament, and death or remarriage ends it.
• The marital portion changes form with the number of children. Only the no-child tier is ownership; the other tiers are life usufructs.
• Death benefits reduce the marital portion. Article 2435 deducts both a spouse's legacy and payments due as a result of death.

Common questions

Can every surviving spouse claim one-fourth? No. The spouse must first meet art. 2432's comparative-wealth condition, and the form and fraction then depend on the number of children under art. 2434.

Does a matrimonial regime eliminate the marital portion? Article 2433 says the marital portion is an incident of any matrimonial regime. The six-article chapter does not state a special waiver form.

Can the spouse's estate continue a marital-portion claim after the spouse dies? Article 2436 calls the right personal and nonheritable.

Is the three-year period measured from probate? No. Article 2436 measures it from the date of death.

Statutes and sources

• La. Civ. Code arts. 2336 and 2356 — present one-half community ownership and termination of the community regime at death. Official Civil Code art. 2336 and art. 2356 (accessed 2026-08-02).
• La. Civ. Code art. 890 — surviving-spouse usufruct over the decedent's undisposed community share. Official Civil Code (accessed 2026-08-02).
• La. Civ. Code arts. 2432 to 2433 — comparative-wealth eligibility, matrimonial-regime scope, succession charge, and separation rule. Official Civil Code (accessed 2026-08-02).
• La. Civ. Code arts. 2434 to 2435 — amount, $1 million cap, and spouse offsets. Official Civil Code art. 2434 and art. 2435 (accessed 2026-08-02).
• La. Civ. Code arts. 2436 to 2437 — personal right, three-year prescription, and periodic allowance. Official Civil Code art. 2436 and art. 2437 (accessed 2026-08-02).
• La. Civ. Code art. 1493(A) — forced heirs are qualifying first-degree descendants. Official Civil Code (accessed 2026-08-02).
• Official Civil Code table of contents — complete current index used to confirm the absence of a general elective-share article. Louisiana Legislature (accessed 2026-08-02).