Separate Property That Was Donated to a Decedent With No Will in Louisiana

by Jeff Franco J.D./M.A./M.B.A.

When a Louisiana resident owns property at the time of death but doesn’t leave a will, he is said to have died "intestate." As a result, the Louisiana intestacy laws determine which heirs will receive the property, including separate property that was donated to the decedent.

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Donated Financial Accounts

Before a decedent’s property can be distributed, one of the state’s district courts must determine which property is part of the decedent’s estate -- which is entirely subject to the intestacy laws – and which property isn’t. If the decedent received a donation of property as a gift, it is part of the estate unless it’s the type of property, such as financial accounts, that names a beneficiary who is to receive the property at the owner’s death. This commonly includes pensions, annuities, IRAs and other types of retirement plans. For example, if the decedent receives income from a friend’s pension, but the terms require the balance of the pension to be paid to someone else at the death of the decedent, the pension isn’t part of the decedent’s estate – meaning the donated property isn’t owned by the decedent.

Donations While Married

Louisiana is a community property state, which means each spouse owns half of all property either spouse acquires during the marriage. Furthermore, an individual’s estate includes only his share of community property. One exception to this rule applies to property donations or gifts that are made to one spouse individually. In this case, the donation is treated as the decedent’s separate property. As a result, the entire donation – not just 50 percent – is included in the decedent’s estate and distributed pursuant to Louisiana’s intestate succession law.

Louisiana Intestate Succession

The intestacy laws of Louisiana are significantly different from the laws in other states in that a surviving spouse receives nothing from the estate if the descendent has children or grandchildren. The surviving children receive the entire estate in equal shares, which includes all property donated to the decedent that isn’t a beneficiary account and qualifies as separate rather than community property. However, the law allows the surviving spouse a right to use and enjoy the decedent’s half of community property until her own death.

How This Works

To understand how this all works, assume a decedent is survived by his wife who continues to live in the home they purchased together while married. Further assume that a friend of the decedent gifted him a valuable classic Corvette, which the decedent owns at the time of his death. If you’re the only child of the decedent, Louisiana intestacy law treats the Corvette as separate property you will inherit if your father dies without a will. The house, however, is community property, so you will only inherit half of it and his wife retains ownership of the other half. But since she has the right to live in the home until her own death, you can’t force her out of the home and sell it.