Series: The insanity of forced heirship


Forced heirship extends to those who “may” become incapable in the future.

twin-sistersMrs. “Smith” had her lawyer prepare her will in 2007 which left nothing to her son and two daughters. She left everything to her sister. In their wisdom, the Louisiana Legislature decreed in 2003 that any child who had an inherited condition that might cause them to be disabled one day would be considered a forced heir. This new class of forced heirs would be in addition to children under the age of 24 and children, regardless of age, who are, or become, permanently disabled. (Civil Code Article 1493)

We said at the time that this gem of legislative nonsense would turn families into litigants for years to come. The Tale of Two Sisters is just one example of our prediction being correct and is based on an actual Louisiana case.

When Mrs. Smith died in 2010, her son and daughters sued her estate claiming their mother lacked capacity. The daughters added the claim that they were forced heirs because both suffered from bipolar disorder. At trial, it was first established that Mrs. Smith did have capacity and knew exactly what she was doing when she left her children out of her will. The son was therefore no longer in the suit. It was next established that neither sister was disabled at the time their mother died nor at the time of the trial. It was established that the sisters were being treated by psychiatrists, one for “anxiety, panic disorder, and depression”.

A psychiatrist who testified on behalf of the sisters stated that bipolar disorder is an illness that includes manic episodes and depressive episodes at different points in time. Bipolar disorder does interfere with life and employment functions and although people with bipolardisorders can sometimes function, they can get worse.

twin-sisters-61The trial court found against the sisters and concluded that they were not forced heirs. The sisters appealed and the trial court was reversed. The sisters won and were awarded half of their mother’s estate -which is the forced portion when there are two or more forced heirs.

We have found from years of experience that when a parent disinherits a child, they always have good reasons for doing so. And yet the State of Louisiana presumes to know better than the parent. In addition, a suit against “the estate” is really a suit against family members. In this case, a suit against their aunt and their mother’s wishes. A suit the son lost, as he should have; but a suit the two sisters won because Louisiana has the “quaint” notion of forced heirship. A concept left over from the French Revolution.

By the way, the Tale of Two Sisters is just one of three bipolar cases recently litigated in our courts.