Full question:
I am a single mom to a one year old baby girl. My husband died in a car accident. After his death, I came to know that he had made a will before our marriage. According to that will, he bequeathed all his properties to his nephew. I want to know if I could claim a lawful share in his property.
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: Louisiana
Answer:
You are entitled to receive his community property that your husband owned during his lifetime. Along with that, you are entitled to receive a usufruct, which would terminate if you remarry or on your death (which happens first). If there are no descendants, parents, brother or sisters of your husband and you were not legally separated from your husband then you would also receive his separate property to the exclusion of other ascendants and other collaterals.Here is the relevant law for more information:
La. C.C. Art. 890:
Usufruct of surviving spouse
If the deceased spouse is survived by descendants, the surviving spouse shall have a usufruct over the decedent's share of the community property to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or remarries, whichever occurs first
La. C.C. Art. 894:
Separate property; rights of surviving spouse
If the deceased leaves neither descendants, nor parents, nor brothers, sisters, or descendants from them, his spouse not judicially separated from him shall succeed to his separate property to the exclusion of other ascendants and other collaterals.
La. C.C. Art. 889:
Devolution of community property
If the deceased leaves no descendants, his surviving spouse succeeds to his share of the community property.
La. Civ. Code Ann. art. 2338
Art. 2338. Community property
The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.
La. Civ. Code Ann. art. 2340
Art. 2340. Presumption of community
Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.
La. Civ. Code Ann. art. 2336
Art. 2336. Ownership of community property
Each spouse owns a present undivided one-half interest in the community property. Nevertheless, neither the community nor things of the community may be judicially partitioned prior to the termination of the regime.
During the existence of the community property regime, the spouses may, without court approval, voluntarily partition the community property in whole or in part. In such a case, the things that each spouse acquires are separate property. The partition is effective toward third persons when filed for registry in the manner provided by Article 2332.
La. Civ. Code Ann. art. 2341.1
Art. 2341.1. Acquisition of undivided interests; separate and community property
A. A spouse's undivided interest in property otherwise classified as separate property under Article 2341 remains his separate property regardless of the acquisition of other undivided interests in the property during the existence of the legal regime, the source of improvements thereto, or by whom the property was managed, used, or enjoyed.
B. In property in which an undivided interest is held as community property and an undivided interest is held as separate property, each spouse owns a present undivided one-half interest in that portion of the undivided interest which is community and a spouse owns a present undivided interest in that portion of the undivided interest which is separate.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
