Omitted or Pretermitted Children Under Wills in Louisiana
At a glance
| Will and child covered | First-degree descendant qualifying as forced heir by age or permanent incapacity; reserved legitime (arts. 1493(A), 1494). |
|---|---|
| Birth or adoption timing | Age/incapacity measured at death; art. 1493 does not key protection to birth after will execution (art. 1493(A), (D)–(E)). |
| Naming and provision test | Forced heir cannot be deprived of reserved legitime absent just cause to disinherit (art. 1494). |
| Intentional omission | Will silence alone is not the test; deprivation of legitime requires just cause to disinherit (art. 1494). |
| Other-parent gifts | Forced-heir definition and reserved-portion rule state no other-parent devise condition (arts. 1493–1494). |
| Outside gifts and advancements | Recent lifetime donations enter calculation; insurance and qualified-plan benefits paid to forced heir credit forced share (art. 1505(A), (C)–(D)). |
| Baseline statutory share | Forced portion: one-quarter with one forced heir, one-half with two or more; individual legitime capped by intestate fraction (arts. 1495, 1495.1). |
| Effect of gifts to existing children | Divide forced portion by heads for first-degree forced heirs, by roots with representation; no will-execution child-gift formula (art. 1495.1). |
| Property source and abatement | Excess gifts reducible; testamentary donations exhausted before lifetime donations, subject to preferred legacy (arts. 1503, 1507). |
| Trust and nonprobate reach | Insurance and specified deferred-compensation benefits excluded from calculation but credited if paid to forced heir (art. 1505(C)–(D)). |
Requirements one by one
Protected child and share
Article 1493(A) defines a first-degree descendant as a forced heir if the descendant is twenty-three or younger at death or meets its permanent-incapacity rule. Article 1493(D) clarifies that the age category lasts until the person turns twenty-four. Article 1494 reserves the legitime for a forced heir unless there is just cause to disinherit. These provisions turn on status at death, rather than whether the child was born after a will.
Under art. 1495, the forced portion is one-quarter if there is one forced heir and one-half if there are two or more. Article 1495.1 divides among first-degree forced heirs by heads, uses roots when representation applies, and caps an individual's fraction at the intestate fraction. Article 1493(B)–(C) sets the specific representation conditions when a child died before the decedent.
Funding and reduction
Article 1503 makes a gift that impairs the legitime reducible, rather than void, only to the extent needed to remove the impairment. Article 1505(A) calculates the mass from death-time property less estate sums due and adds back qualifying lifetime donations within three years at their donation-time value. Under art. 1507, testamentary donations are exhausted before lifetime donations; an expressly preferred legacy is reduced after other legacies.
What trips people up
Article 1505(C)–(D) excludes the specified life-insurance and deferred-compensation amounts from the calculation but credits their value when paid to or for a forced heir. Treating those amounts as ordinary probate assets would misstate both sides of the calculation.
Common questions
Does omission from the will itself create a share? The protection described by arts. 1493–1494 depends on forced-heir status and the reserved legitime, not the will's silence alone.
Can a descendant represent a child who died first? Article 1493(B) allows representation when that child would have been twenty-three or younger at the decedent's death; subsection (C) also covers a qualifying incapacitated descendant in the stated circumstances.
Statutes and sources
- La. Civ. Code arts. 1493–1495.1, 1503, 1505, and 1507. Verbatim current text, official article URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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