The Changing Concept of Family and its Effect on Louisiana Succession Law

• Author: Kathryn Venturatos Lorio
• Position: Leon Sarpy Professor of Law, Loyola University School of Law New Orleans

Leon Sarpy Professor of Law, Loyola University School of Law New Orleans. The author gratefully acknowledges the research and editorial assistance of Julie Elizabeth Hebert, made possible by the support of the Alfred J. Bonomo, Sr. family, and the Rosaria Sarah La Nasa Memorial Scholarship Fund and to Nona Beisenherz, Associate Professor, Loyola Law Library for her help in obtaining materials. My thanks to Julie Rodrigue Carbo for reviewing a preliminary draft of this manuscript and offering appreciated suggestions, to Professor Dominique Custos, Loyola Law School, for her assistance with French sources and to Professor John Lovett, Loyola Law School for his helpful input.

In the 1800s, the Louisiana family was not only a social institution, but also "the most important unit of production in the countryside."¹ At that time in the United States, family and marriage were directly related to social standing and economic status.² Wealth was primarily in the form of land, and there was a belief that such wealth should stay within the bonds of blood.³

The law, as reflected in the Louisiana Digest of 1808, promoted, what Professor Mary Ann Glendon has referred to as the "family of the Civil Code,"⁴ similar to that contemplated by the Code Napoleon.⁵ Marriages were frequently arranged by parents of the bride and groom based on financial considerations, rather than romantic notions,⁶ and were generally considered to last until the death of one of the parties. Although separation from bed and board for cause was provided for in the Digest of 1808, "as it formerly existed under the laws of the country,"⁷ divorce was not permitted until 1827.⁸ The act of marrying carried with it the obligation of supporting and educating children born of that marriage.⁹ The duty of maintenance extended reciprocally beyond the nuclear family to all needy ascendants and descendants.¹⁰

When a marriage ended by death of one of the spouses, the decedent's legitimate children, usually being issue of the decedent and the surviving spouse, inherited the property of their deceased parent, in equal shares.¹¹ Although a widow was not an intestate heir except in the absence of legitimate descendants, ascendants or collaterals,¹² she was provided for by the provisions of community property law¹³ and the right to claim a marital portion.¹⁴ When a decedent died testate, his children were protected by a provision in the Digest which recognized the right of his children to a forced portion of four-fifths of the decedent's estate, as provided by Spanish law.¹⁵ The amount was later changed by the Louisiana Civil Code of 1825 to a graduated system, similar to French law, although not providing as generous a forced portion as that provided for in the Code Napoleon.¹⁶

This intricate, balanced system worked well in a society in which marriages lasted a lifetime, children were an economic asset,¹⁷ and the law encouraged a certain type of behavior. Christian Atias described the civil law as resting on an unspoken balance "between a 'normal behavior' and an 'abnormal behavior,'" noting that "[t]he nineteenth century legislator described the 'normal behavior' to regulate the 'abnormal behavior.'"¹⁸ The "normal behavior" was encouraged and promoted; "abnormal behavior" was suppressed.

As society changed in the twentieth century, so did the concept of family. As Louisiana became less agrarian, as the number of women in the work force increased dramatically,¹⁹ as divorce became not only possible,²⁰ but a usual occurrence, the precepts of the 'family of the Civil Code' were viewed as less relevant. It is estimated that in the early twentieth century, there were three divorces for every 1000 marriages.²¹ By 1997, 50% of all first marriages were doomed to end in divorce.²² As the number of divorces increased, so did the number of children living with only one parent, usually the mother.²³Additionally, most of those who divorced remarried,²⁴ creating step- families with unique characteristics of their own. In the 1970s the percentage of marriages involving previously married spouses increased dramatically. Today, in about one-half of all marriages, for at least one of the spouses, the marriage is not a first marriage.²⁵ In the United States today, sixty percent of those second marriages will end in divorce.²⁶

This changed family is not unique to Louisiana or even to the United States, but rather is a phenomenon shared by many Western nations. The legal response to this different concept of family is observable in the changes in Louisiana succession laws that were significantly influenced by Louisiana's common law neighbors, who emphasized personal autonomy in dealing with one's estate. Two particular concepts, that of the usufruct of the surviving spouse and that of forced heirship, are illustrative of the distinctive approach taken in Louisiana, as compared to its ancestral counterpart, France.

In 1844, the concept of the usufruct of the surviving spouse was introduced in Louisiana.²⁷ It was later incorporated into the Civil Code of 1870 as Article 916 and provided for a usufruct to the surviving spouse in community over community property inherited by issue of the marriage with the decedent, where the decedent had not disposed by will of his share in the community property. The usufruct was to end on the surviving spouse's death or remarriage.²⁸

The usufruct is an illustration of the balance the redactors were trying to achieve. By limiting the spousal usufruct to community property, the system did not affect the rights of the children to unfettered use and disposal of their deceased parent's separate patrimony. Also, by having the usufruct apply only to property inherited by issue of the marriage of the decedent and the surviving spouse, the possibility of a stepparent exercising rights over property inherited by the decedent's children was avoided. By terminating the usufruct on remarriage, the article recognized that the surviving spouse would probably not need the protection of the usufruct if she were to enter into a remarriage, and it also protected the children from the influence of their surviving parent's new spouse. Thus, this 1844 addition to the laws of Louisiana was consistent with the balance of interests between the decedent's surviving spouse and his children.

Although not formally amended until 1975, the usufruct article was the subject of much litigation, resulting in "judicial amendment" many times before the legislature took action.²⁹ One of the first questions to be raised was the application of the usufruct when the decedent by will attempted to dispose of his community property in favor of his widow. In 1876, in the case of Forstall v. Forstall,³⁰ the decedent had written a will leaving all of his share of the community property to his widow, without providing for his three children who were forced heirs. The Louisiana Supreme Court held that since the deceased, by writing a will, had disposed of his community property, Article 916 dealing with the spousal usufruct was not applicable. Rather, the court gave the widow the option of keeping her legacy of the disposable portion or renouncing the legacy and taking only the usufruct "by law" over the decedent's share of the community property inherited by the issue of the marriage. It was a question of either taking by intestacy or taking by will, but not a combination of the two.

Withdrawing from the rationale in Forstall, the 1888 case of Succession of Moore,³¹ allowed a widow to keep both the disposable portion in full ownership granted to her by the will of her deceased spouse, and the usufruct over the forced portion inherited by children of the marriage. In Moore, the decedent, who died possessed of only community property, had bequeathed the usufruct of all his property to his wife and also left a codicil giving her the disposable portion in full ownership. Introducing an "adversity test" for evaluation of the application of the usufruct, the court held that since the testator had not done anything adverse to granting the legal usufruct of Article 916, he had in effect confirmed it. Similarly, in the later case of Winsberg v. Winsberg,³² decided in 1957, the decedent died possessed only of community property, which he left entirely to his wife to the exclusion of his four children, as Mr. Forstall had done before him. That court also allowed the wife to keep both the disposal portion and the usufruct over the forced portion inherited by the four children.

Gradually, this line of reasoning came to recognize two types of usufruct - a "legal" usufruct, being one that resulted from intestacy or confirmation by testament of the Article 916 usufruct, and a "testamentary" usufruct, being one created by testament in such a manner that it deviated from the Article 916 mold and, thus, was not permitted to impinge on the forced portion inherited by the decedent's issue. If the usufruct were deemed to be a "legal" usufruct, the usufructuary was exempt from providing security³³ and from paying Louisiana inheritance tax.³⁴ Additionally, such a "legal" usufruct was sanctioned by law over the forced portion inherited by the children of the decedent, thus not considered an impingement on the legitime of each forced heir. However, along with the advantages of such a "legal" usufruct for the surviving spouse came the balancing disadvantages necessary to protect the interests of the children. One of those limitations was that the original 916 usufruct was to terminate upon the remarriage of the spouse, thus preventing a surviving parent's new spouse from enjoying any benefit of the usufruct over property owned by the children of the decedent. Where a decedent was found to have confirmed the 916 usufruct by will to his wife, the court in the Succession of Chauvin,³⁵ in 1972, made it clear that a legal usufruct confirmed by testament would end on remarriage over all the property inherited by the...