Successions & Donations

• Author: J.-R. Trahan
• Position: James Carville Alumni Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University
• Pages: 315-402

Page 315

James Carville Alumni Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University.

Though this article, as its title suggests, concerns recent developments in the law of successions and donations, it does not fit the mold of typical "recent developments" pieces. For one thing, its arrangement is different. Instead of following the usual plan of Page 316 presentation, according to which the author discusses, first, legislative developments and, then, jurisprudential developments (or vice-versa), I have followed a "thematic" plan of presentation, one in which I move from legislative developments to jurisprudential developments and then back again as these developments may relate to the topic under discussion. For another thing, its content is different. A "recent developments" piece usually contains a more or less simple explication, together with a more or less (usually less) in-depth critique, of each of the pertinent developments. This article does have that, to be sure. But it has something extra-a little lagniappe, as we Cajuns would say. Of what this lagniappe consists varies. In most instances, the lagniappe is an account of the historical and juristic context of the development, that is, I review some of the history of and explain to some degree the nature of the juridical institution or institutions with which the development is concerned. In other instances, the lagniappe is an exhaustive critique of one or more aspects of the development. And in at least one instance, the lagniappe is an extended rebuttal of criticisms that have been directed at the development. All things considered, then, it might be more accurate to entitle this piece Historical and Critical Essays Inspired by Recent Developments in the Law of Successions and Donations.¹

I Successions

A."Capacity" to Inherit: Children Conceived Post Mortem Throughout the history of the civil law tradition, which has stretched on for over two thousand years now, it has been the rule that in order for one to be able to inherit from some de cujus, ² one must Page 317 "exist" at the moment of his death.³ Furthermore, the property of "existence" has been predicated of persons who, at that moment, have already been born or, at the very least, have already been "conceived," ⁴provided that, in this latter case, the person should later be born alive.

Back in 2001, the Louisiana Legislature altered these longstanding rules. Through Act 479 of that year, the legislators enacted a new provision of Title 9 of the Revised Statutes (the "Civil Code Ancillaries") - 391.1. According to that section, a child would be Page 318 considered the legitimate child of the de cujus (and, therefore, presumably would be entitled to inherit from him) even though that child had not been born or even conceived as of the moment of the de cujus' death, provided that the following prerequisites were satisfied:

(1) the child was produced by the union of the gametes of the de cujus and his wife ; ⁵

(2) this union of gametes had been authorized by the de cujus in writing; and

(3) the child was born within two (2) years of the de cujus' death.⁶

The effect of this new statute, clearly enough, was to accord capacity to inherit to yet another class of persons, what might be called "posthumously conceived children."

During its most recent session, the Louisiana Legislature amended the new statute. The amendments, which were enacted as part of Act No. 495, are reflected in the following chart:

Original Version

391.1. Child conceived after death of husband

1. Notwith standing the provisions of Civil Code Articles 184 and 185 to the contrary and in addition to the provisions of Civil Code Article 179, any child conceived after the death of a decedent, who specifically authorized in writing his surviving spouse touse his gametes, shall be deemed the legitimate child of such decedent, provided the child was born to the surviving spouse, using the gametes of the decedent, within two years of the death of the decedent.

   Original Version with Amendments

   391.1. Child conceived after death of husband parent

1. Notwith standing the provisions of Civil Code Articles 184 and 185 to the contrary and in addition to the provisions of Civil Code Article 179 any law, any child conceived after the death of a decedent, who specifically authorized in writing his surviving spouse to use his gametes, shall be deemed the legitimate child of such decedent with all rights, including the capacity to inherit from the decedent, as the child would have had if the child had been in existence at the time of the death of the deceased parent, provided the child was born to the surviving spouse, using the gametes of the decedent, within three two three years of the death of the decedent.

   Page 319

   Amended Version

   391.1. Child conceived after death of parent

1. Notwith standing the provisions to the contrary of any law, any child conceived after the death of a decedent, who specifically authorized in writing his surviving spouse to use his gametes, shall be deemed the c h i ld of such decedent with all rights, including the capacity to inherit from the decedent, as the child would have had if the child had been in existence at the time of the death of the deceased parent, provided the child was born to the surviving spouse, using the gametes of the decedent, within three years of the death of the decedent.

   The amendment changes 391.1 in four respects. First, the amendment eliminates from the statute's "notwithstanding" clause the reference that the clause had theretofore contained those Civil Code Page 320 articles from which the statute derogates (179, ⁷184, ⁸and 185⁹ ), replacing that specific reference with a more generic reference to "any law." Second, the amendment eliminates the adjective "legitimate" before the noun "child," so that, now, the statute no longer addresses the question whether a child born under its auspices is legitimate or illegitimate. Third, the amendment spells out the juridical effects that follow from the classification of the child as a "child of the decedent," in particular, the child's capacity to inherit from that decedent. Fourth, the amendment extends the deadline by which the child must be born, if it is to be considered a "child of the decedent," from two years after the decedent's death to three years after the decedent's death.

   The first change-the extension of the scope of the "notwithstanding" clause to "any law"-reflects the legislature's recognition that 391.1 derogates from more "law" than just the three Civil Code articles that were enumerated in that clause as it was originally written. To these articles, one can add several others, for example, (i) Articles 25 ¹⁰and 26, ¹¹which concern the onset of "natural personality"; (ii) Articles 939 and 940, which concern capacity to inherit; and (iii) Articles 1472 and 1474, which concern capacity to receive donations. In addition to these other Civil Code articles, 391.1 derogates from various special private law statutes, such as the Trust Code (in particular, 1891, which concerns "class trusts" ¹² ) and perhaps even a public law statute or two, such as the Internal Revenue Code (in particular, 2402, which concerns "estate tax" exemptions¹³). The list goes on. Having recognized that the Page 321 original "notwithstanding" clause was woefully underinclusive, the legislature, to its credit, decided that the clause had to be "fixed." The "fix" it chose was simple and elegant: instead of listing each piece of legislation from which 391.1 derogates, simply use the catch-all phrase "any law."

   The second change-suppression of the term "legitimate"-no doubt stems, at least to some degree, from the legislature's new- found (some would add "politically correct") sensitivity toward illegitimates, a sensitivity that recently led the legislature to demand that references to legitimacy and illegitimacy be expunged from all legislation. In this instance, at least, the elimination of such a reference is entirely defensible. From the very beginning, the principal, if not sole, concern of 391.1 has undoubtedly been to assure that a child born in accordance with it can inherit from "the decedent." Now, when it comes to the right to inherit, the distinction between legitimates and illegitimates is of no moment: since 1981, the successions law of Louisiana has drawn no such distinction, that is to say, illegitimates have inherited on an equal footing with legitimates since that time.¹⁴

   The purpose of the third change-the specification of the juridical effects of the child's status as "child of the decedent"-was, one suspects, simply to make clearer the real point of 391.1, namely, that a child born under it can inherit from him whose "gametes" were used to create the child. As the statute was originally written, it said nothing, at least not expressly, about any of the child's "rights," not even those related to successions; to the contrary, one was left to infer that the child had such rights from the statute's classification of the child as the "legitimate...