Article by Gerald Le Van
The law has consecrated two specific obligations based on . . . blood tie: the alimentary obligation and the reserved portion. Under the first . . . relatives in direct line must support each other during their lives, if necessary; under the second . . . they must in their death leave a substantial portion of their estate to the survivors. The two obligations do not follow one from the other. They do not have the same importance or scope, the alimentary claim being attributed to more persons than the reserved portion. But both originate in a common higher principle.
In these words, Planiol intones the litany of forced heirship. And his credo remains largely unchanged in Louisiana today. To some degree this ancient civil law institution may be said to preserve some property of the decedent from which his descendants or parents can derive support; to some extent a share of family wealth is guaranteed. Some critics have challenged forced heirship, arguing that its once sacred underpinnings no longer support it; others complain that it smothers enlightened testamentary freedom; still others protest that its rigidity can produce untoward death tax consequences.
In 1974 the opponents of forced heirship had an opportunity to remove it from the protection of the Louisiana Constitution. They failed. Their frontal assault met with surprising resistance, which surely proceeded from something stronger than mere tradition. Was forced heirship perpetuated because Louisianians were unwilling to part with the mystique of family property, or afraid of diverting family property from compulsory support, or, as Planiol suggests, unwilling to abandon a "common higher principle"?
Despite the action of the 1974 Constitutional Convention, the debate continues. To fuel enlightened argument, let us search for the "common higher principle" by examining the function of forced heirship in the two areas suggested by Planiol: (1) Inducement of family support and (2) maintenance of "family property." By so doing, we may discover something new and better, or we may find reassurance in forced heirship as it is.
About the Author
Gerald Le Van. Professor of Law, Louisiana State University; B.A. 1956, S.M.U.; J.D. 1962, L.S.U.
Citation
52 Tul. L. Rev. 29 (1977)