Hi, I am Jena Wynne, and I am an attorney in Lafayette at Hoyt & Stanford.

I have previously talked about what your spouse will inherit if you do not have a Last Will and Testament. What happens though if you have a child?

If you have a child, then your child will inherit all of your separate property and your child will inherit your one-half (1/2) interest in the community property.

What does your spouse inherit from you? Your spouse inherits a usufruct over your one-half (1/2) interest in the community property.

What is a usufruct? In Louisiana, ownership rights can be divided into 3 parts –

1) Ususus – the right to use;

2) Fructus – the right to enjoy;

3) Abusus – the right to get rid of.

A person with a usufruct has the right to use the property and to enjoy the property, but not to get rid of the property.

So without a Last Will and Testament your child will inherit your one-half (1/2) interest in your community property and your husband will inherit a usufruct over your one-half (1/2) interest in the community property along with keeping his one-half (1/2) interest in the community property.

In a way, your child and spouse are co-owners of the community property because both your child and spouse own a one-half (1/2) interest in the community property. This is frequently not a good situation.

Why? Well, what if your spouse needs to sell the house? If you child is a minor, then your spouse has to petition the court to be appointed as the tutor of your child. Only then can your spouse sell the house.

What if your child is 18? Then your spouse can not sell the house without your child’s consent. Hopefully, your child is willing to agree to sell the house.

Avoid these complicated situations by coming to see me for your Last Will and Testament.

Jena is an Attorney & Counselor at Law whose primary areas of practice are Tax Law and Estate Planning and is located in Lafayette, LA