Comment by Amy Sapper Poling
Recently, Louisiana voters approved an amendment to their state constitution which led to drastic changes in the almost-sacred civilian tradition of forced heirship. This amendment removed language providing that “no law shall abolish forced heirship” and replaced it with language eliminating the protection of forced heirship for all children older than twenty-three years of age who are neither physically nor mentally handicapped. This amendment and the legislation that has flowed from it have had many ramifications. One particularly disturbing ramification is the elimination of protection for healthy children of divorce who reach the age of twenty-four before their parents' deaths. Because of the narrowed definition of forced heir, a divorcing parent in Louisiana is left without the means (even voluntarily) to ensure that his or her ex-spouse will not disinherit the offspring of the marriage.
One of the reasons why Louisiana parents are left without the option of ensuring against their children's disinheritance is Louisiana's general prohibition against contracting for future successions. While there is presently an exception to this general prohibition in the case of antenuptial agreements, there is no exception for agreements made during marriage, or for agreements incident to divorce. Therefore, this Comment proposes that such exceptions be created so that parents may agree voluntarily to leave their children some or all of the disposable portion of their estates.
Part II of this Comment briefly examines forced heirship and its demise in Louisiana. Part III then examines Louisiana's prohibition against contracting for future successions and the antenuptial exception. Part IV examines the operation of common law contracts to make wills. Finally, through comparison with the common law, Part V explores the operation of the proposed exception to Louisiana's general prohibition against contracting for future successions.
About the Author
Amy Sapper Poling. B.A. 1987, University of California, Berkeley; J.D. 1998, Tulane University School of Law.
Citation
72 Tul. L. Rev. 1853 (1998)