Happily Ever After: Eliminating the 890 Usufruct to Protect the Blended Family

• Author: Katherine H. Dampf
• Position: J.D./D.C.L. 2014, Paul M. Hebert Law Center, Louisiana State University
• Pages: 899-935

Happily Ever After: Eliminating the 890 Usufruct to

Protect the Blended Family

TABLE OF CONTENTS

Introduction ............................................................................. 900

I. Succession Theories and the Stepfamily ................................ 903

A. The Theories Underlying Succession Law ...................... 904

1. The Natural Duty Theory ........................................... 904

a. The Natural Duty to the Decedent’s Children ..... 905

b. The Natural Duty to the Decedent’s

Surviving Spouse .................................................. 905

2. The Presumed Will Theory ........................................ 906

B. The Complications of the Stepfamily ............................... 906

1. The Blended Family ................................................... 907

2. The Complications of the Blended Family

Exacerbated in Intestate Succession ........................... 909

a. Unnatural Ties ...................................................... 909

b. Uncomfortable Conversations and Passive

Neglect .................................................................. 910

c. Conflicting Loyalties ............................................ 911

II. Louisiana’s Deficient Treatment of the Stepfamily

in Intestacy............................................................................... 912

A. The 890 Usufruct .............................................................. 912

1. The Historical Approach ............................................ 912

2. The 890 Usufruct Today ............................................. 914

B. The Inadequacies of the 890 Usufruct .............................. 916

1. The Inadequacies vis-à-vis the Stepfamily ................ 917

a. The Nature of the Usufruct: The Sharing of

Attributes of Ownership ....................................... 917

b. The Prudent Administrator Standard ................... 917

c. The Power of the Usufructuary to Dispose

of a Consumable Thing ........................................ 919

d. Security ................................................................. 920

e. Expenses ............................................................... 921

2. The Inadequacies of the 890 Usufruct vis-à-vis

the Theories of Succession ......................................... 922

900 LOUISIANA LAW REVIEW [Vol. 74

a. The Shortfalls of the 890 Usufruct Under

the Natural Duty Theory ...................................... 922

i. The Natural Duty to the Decedent’s

Children ........................................................... 923

ii. The Natural Duty to the Surviving

Spouse ............................................................. 923

b. The Shortfalls of the Presumed Will Theory ....... 924

III. Other Approaches to the Cinderella Problem......................... 924

A. The Civilian Approach: What Has France Done? ........... 925

B. The United States .............................................................. 928

1. The Original Uniform Probate Code .......................... 928

2. The Revised Uniform Probate Code .......................... 929

3. The Influence of the Uniform Probate Code in the

United States ............................................................... 931

IV. Solution: Adopting the Lump-Sum-Plus-a-Fraction

Approach ................................................................................. 933

Conclusion ............................................................................... 935

INTRODUCTION

Cinderella lived happily ever after,1 but what became of her

wicked stepmother, the Lady Drizella Trumaine?2 Imagine that this

classic tale was set in Louisiana and that in the years following

Cinderella’s storybook wedding, Cinderella’s father and Drizella

spent the remainder of their lives together. Though they were happy,

they were not particularly wealthy, and Cinderella’s father never

drafted a will. When Cinderella’s father died, Louisiana law granted

Drizella an interest in his share of the marital property in the form of

a usufruct.3 However, although Drizella was relieved to learn that

she would be permitted to use and enjoy her husband’s property in

the years following his death, she was dismayed when she learned

that Louisiana law also granted Cinderella an interest in the same

Copyright 2014, by KATHERINE H. DAMPF.

1. CHARLES PERRAULT, PERRAULT’S FAIRY TALES 56 (A. E. Johnson trans.,

2004).

2. CINDERELLA (Walt Disney Animation Studios 1950).

3. See LA. CIV. CODE art. 890 (2014) (providing that upon a spouse’s death,

the surviving spouse receives a usufruct over the deceased spouse’s one-half

interest in community property).

2014] COMMENT 901

property, effectively forcing Drizella to share her former husband’s

property with her ungrateful stepdaughter.4

One might imagine that this sharing of interests would not be the

most optimal arrangement, considering that the two did not have the

most natural and affectionate relationship.5 Drizella’s interest only

allows her the right to use the property and collect its fruits.6

Consequently, she may encounter financial difficulties if the

property does not generate income in the form of civil fruits—like

rents or dividends—because she is precluded from selling the

property to create liquid income. Given the tumultuous relationship

between Cinderella and her wicked stepmother, Cinderella would

feel no duty to come to Drizella’s aid. Indeed, Cinderella’s contempt

for Drizella might only be exacerbated by a legal scheme that

effectively deprives her of any right to her father’s estate while her

stepmother is still living and unmarried.7 Louisiana’s default

inheritance regime, designed both to approximate the will of the

decedent and provide for those left behind, serves no one in this

blended family.

A decedent who dies intestate—without a will—necessarily

does not express desires regarding the property left behind. Instead,

intestacy law imposes a “statutory will” on the decedent.8 Many

states have had to rethink traditional intestacy rules to address the

new social phenomenon of intestate succession involving a

stepparent and a decedent’s children,9 referred to in this Comment

4. See A. N. YIANN OPOULOS, PERSONAL SERVITUDES § 7:5, in 3 LOUISIANA

CIVIL LAW TREATISE 438 (5th ed. 2011) (explaining that “[t]he naked ownership

of the share of the deceased spouse devolves to his descendants by intestacy and

the surviving spouse obtains a legal usufruct over that share”).

5. See discussion in fra Part I.B.

6. As a usufructuary, Drizella would only be entitled to use and e njoy the

property as well as receive any civil or natural fruits from the property.

YIANNOPOULOS, supra note 4, § 2:2, at 111. The right to dispose or otherwise

alienate the property resides with the naked owner alone—in this case, Cinderella.

See id. § 5:3, at 341. For more on the governing features of the usufruct, see infra

Part II.A.2.

7. See infra Part II.A.2 (explaining that the legal scheme that arises by

operation of law terminates upon the earlier of death or r emarriage of the surviving

spouse).

8. Jennifer R. Boone Hargis, Note, Solving Injustice in Inheritance Laws

Through Judicial Discretion: Common Sense Solutions from Common Law

Tradition, 2 WASH. U. GLOBAL STUD. L. REV. 447, 449 (2003). See also Susan N.

Gary, Adapting Intestacy Laws to Changing Families, 18 LAW & INEQ. 1, 1 (2000)

(describing a “statutory will” as one in which “the government, rather than the

individual, determines the dispositive ter ms”).

9. See, e.g., Lawrence H. Averill, Jr. & Ellen B. Brantley, A Comparison of

Arkansas’s Current Law Concerning Succession, Wills, and Other Donative

Transfers with Article II of the 1990 Uniform Probate Code, 17 U. ARK. LITTLE