Question: My husband died and the house we have lived in for the last 20 years is only in his name, and the bank accounts were all in his name as well. My in-laws want me out the house and want the money out of the bank accounts. I will be left with nothing…what do I do?
Answer: Unfortunately, we run into this situation all too often. It comes up with second marriages or when people get married later in life. What happens is that the newlyweds move into a house that was purchased and owned prior to the marriage by just one of the spouses. They live in the house throughout their marriage, treating it as their family home.
Unless proper estate planning is done, the spouse who moved in can find themselves kicked out of the family home by the in-laws or step-children. This is due to the fact under Louisiana law, a surviving spouse does not inherit the separate property of the spouse who passes away. Unfortunately, many couples do not know this and without planning, can result in the surviving spouse facing becoming homeless and penniless as the result of the death of their husband or wife.
In order to avoid this unfortunate outcome, Louisiana law recognizes what is known as a “marital portion.” The law provides that when a spouse dies rich in comparison with the surviving spouse, that the surviving spouse is entitled to claim a “marital portion” from the succession of the deceased spouse. See Article 2432 of the Louisiana Code of Civil Procedure. The purpose of this law is to prevent a surviving spouse from being left in poverty after having become accustomed to the use of the assets of the spouse who passed away.
In order for a surviving spouse to qualify for the marital portion, the value of the assets of the deceased spouse is compared to that of the surviving spouse. Although there is no concrete test to qualify, as a rule of thumb the surviving spouse will qualify for the marital portion if his or her assets are worth 20% or less of the value of the deceased spouse’s assets. As a simple example, assume that a husband dies and the value of his property at the time of his death is $100,000.00. If the surviving wife’s assets are worth $20,000.00 or less, she would likely qualify to receive a portion of her husband’s assets from his succession.
The amount of the marital portion is set at one-fourth (1/4) of the succession in ownership if the deceased died without children, or one-fourth (1/4) in usufruct for life if the deceased spouse is survived by three or fewer children, or a child’s share in usufruct for life if the deceased spouse is survived by more than three children. The marital portion is capped at one million ($1,000,000.00) dollars. The amount of the marital portion may also be reduced by the amount of any property left to the surviving spouse in the deceased spouse’s will, and also reduced by the amount of any payments the surviving spouse receives as the result of the death of the spouse which includes life insurance proceeds, social security payments, and pension benefits that come about because of the death of the spouse.
The marital portion is an important right in favor of the surviving spouse that must be considered and asserted in the succession when possible to avoid a surviving spouse falling into poverty.