The Article 2315.1 Survival Action: A Probate or Non-Probate Item

• Author: Warren L. Mengis
• Position: Professor of Law, Paul M. Hebert Law Center, Louisiana State University
• Pages: 417-422

Page 417

Professor of Law, Paul M. Hebert Law Center, Louisiana State University.

Louisiana law exclusively determines what happens to the property of Louisiana residents when they die.¹ Accordingly, the Louisiana legislative scheme provides rules to govern the process known as succession. Louisiana Civil Code article 871 defines succession as "the transmission of the estate of the deceased to his successors... ." Article 872 defines the "estate" as the "property, rights and obligations that a person leaves after his death...." Beneficiaries of the estate are divided into three categories: creditors, taxing authorities, and heirs/legatees.

There is little question but that creditors are the favored class when it comes to dividing the property left by the deceased. Article 3183 states that the property of the debtor is the common pledge of his creditors. It is made clear in our jurisprudence, however, that a creditor has no right to property or proceeds which never formed a part of the estate of the deceased. Therefore, a number of items have been legally exempted from inclusion in the estate.²

For example, in Sizeler v. Sizeler,³ the Louisiana Supreme Court held that the proceeds of a life insurance policy payable to a specific beneficiary form no part of the estate of the deceased, rather it inures directly to the beneficiary. The principle set forth in Sizeler was codified in Louisiana Revised Statutes 22:647(A).⁴ Even where a life insurance policy is payable to the estate, courts have held that it does not inure to the benefit of creditors.⁵ The legislature has also excluded from a deceased's estate annuities payable to a specific Page 418 beneficiary.⁶ Pursuant to Louisiana Revised Statutes 23:652 and Louisiana Civil Code article 1505, employer and employee contributions made under any plan of deferred compensation that designates specific beneficiaries are excluded from the deceased's estate. Finally, by mandate of federal law, co-owner U.S. bonds are excluded from the decedent's estate when the co-owner survives the deceased.⁷

Now we turn to what may or may not be another exemption: the 2315.1 survival action. Consider the following hypothetical: James Polk was seriously injured in an automobile accident. He timely filed suit for personal injury and property damage. Before trial James died, survived only by his brother, Richard. James left a valid will in which he bequeathed all of the property of which he died possessed to his favorite charity, Saint Jude Children's Research Hospital.

Pursuant to Louisiana Civil Code article 2315.1 and Article 801 of the Code of Civil Procedure, Richard filed a motion to substitute himself for James in the suit. In the meantime, the executor of James' estate filed a descriptive list in which he included an estimate of the recovery from the suit under the survivor's action. The executor then intervened in the suit contending that although Richard may be the proper substitute for the decedent as plaintiff, any recovery on the suit should fall into the estate of the deceased and ultimately pass to St. Jude according to the will.

Article 2315.1 and the Louisiana Code of Civil Procedure seem to allow Richard to maintain the survival action. However, in Carl v. Naquin⁸ the first circuit court of appeal indicated that although the designated beneficiary of the survival action under Article 2315.1 may have the sole right to bring the action, it is not certain that he will receive the proceeds therefrom. The hypothetical presented above, therefore, presents two issues, one procedural (who can maintain the survival action) and the other substantive (who will receive the proceeds from the action). These issues may be summarized in the following question: Is the Article 2315.1 survival action a probate or a non-probate item?

In Carl v. Naquin, the deceased had instituted before her death a suit against a nursing home and its employees alleging abusive treatment. After she died the succession administrator attempted to substitute himself as the plaintiff. The defendant argued that the succession should be dismissed from the action because, as a matter of law, the deceased's brother was the only proper party plaintiff. The court agreed and noted that the deceased's brother was "to be Page 419 given first preference as 'legal successor' and pursuant to the application of [Louisiana Code of Civil Procedure article] 801 together with [Civil Code article] 2315.1, he [was] the proper party plaintiff." The court noted that Article 2315.1(B) confered rights to the succession representative only in "the absence of any class of beneficiary set out in [Article] 2315.1(A)... ."⁹ Accordingly, the court dismissed the succession administrator as the party plaintiff. However, the court allowed the succession to remain in the suit by classifying it as an intervenor.¹⁰

In support of its decision, the court referred to Nathan v. Touro Infirmary,¹¹in which the Louisiana Supreme Court held that a succession representative was the proper party plaintiff to continue a suit initiated by the deceased before his death because there was no Article 2315 survivor. The court agreed with the procedural aspect of Nathan, but it did not read Article 2315.1 as an exception to Louisiana's descent and distribution laws.¹² In other words, the Naquin court did not read Nathan as answering who would receive the proceeds:

This instant case, like Nathan, involved a situation in which the decedent instituted suit prior to his death. Unlike Nathan, there exists a Louisiana Code Article 2315 beneficiary in the instant case. Although Nathan stands for the proposition that the decedent's brother, not the appointed administrator, is the property party plaintiff, Nathan does not stand for the proposition that the proceeds from the suit will be the brother's property, not the property...