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Daniel Solutions, Divorce Lawyer
Category: Family Law
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Experience:  Practicing Attorney for over 15 years
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My spouse of 28 years recently passed away and died intestate.

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My spouse of 28 years recently passed away and died intestate. We had two children together -- now ages 25 and 28. After opening succession, I get a call out of the blue from someone claiming to be a child of my husband. This individual is approximately 30 years old and is NOT disabled. Assuming this person could prove that she is a child of the deceased, is she entitled to any of our community property should I remarry? Or does the forced heirship rules apply and this individual would not be eligible for anything? Thanks.

PS -- we live in Louisiana.

Submitted: 6 years ago.
Category: Family Law
Expert:  Daniel Solutions replied 6 years ago.
If you die without a will (known as dying "intestate") in Louisiana, your assets will be divided amongst your immediate family. Louisiana is a community property state so the division of your property depends on whether the property is separate property or community property. Community property is property that was acquired by you and your spouse while married. Separate property is property that was owned before marriage, inherited property or gifts.

Generally, your spouse will not receive any of your separate property. Your separate property will go to your children or grandchildren. If you do not have children or grandchildren, your separate property will go to your brothers and sisters. If you do not have brothers and sisters, your separate property will go to your nieces and nephews. If you do not have nieces and nephews, your separate property will go to your parents. Subsequently, your separate property goes to your spouse, grandparents, and then to your nearest relative. Your separate property will go the State of Louisiana only if there is no one alive in any of the above groups.

Additionally, your spouse will not receive any of your share of the community property if you and your spouse have children. Your community property will go first to your children. If you do not have children, your spouse will receive your community property. If you do not have a spouse, your community property will go to your brothers and sisters, then to your nieces and nephews, then to your parents, then to your grandparents, then to your nearest relative and then to the State of Louisiana if no one is alive in any of the other groups.


As of 1996, the rules of forced heirship are as follows:

All children who have not attained the age of 24 are forced heirs.
All children (of any age) who, at the time of the death of their parent, are permanently incapable of taking care of their person or administering their estate, due or mental or physical incapacity, are forced heirs.
Grandchildren are forced heirs of their grandparents if the grandparent’s child (the grandchild’s parent) would not have reached the age of 24 at the time of the grandparent’s death.
Grandchildren whose parent has predeceased the grandparent are forced heirs of their grandparent if the grandchild is permanently incapable of taking care of their person or estate, due to mental or physical incapacity, at the time of the grandparent’s death.

Customer: replied 6 years ago.

Well, I still would like to know the following: He died intestate, his alleged illigitimate child is 30 years old. If proven to be his child, is the child no longer a forced heir b/c she is over 24? Would he have had to have a will to disinherit her specifically? Thanks.

 

P.S. I will accept your answer shortly. Many thanks.

Expert:  Daniel Solutions replied 6 years ago.
No she would not be considered a force heir because of her age and there was not mention that she was permanently incapable of taking care of their person or administering their estate, due or mental or physical incapacity. No, there's no need to have a will disinheriting her specifically. I hope this answers your question, but let me know if it does not.
Daniel Solutions, Divorce Lawyer
Category: Family Law
Satisfied Customers: 9934
Experience: Practicing Attorney for over 15 years
Daniel Solutions and 4 other Family Law Specialists are ready to help you

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