Usufruct, Surviving Spouse (Louisiana) Law & Legal Definition


Usufruct of Surviving Spouse Article 890, Louisiana Civil Code.

“If the deceased spouse is survived by descendants, the surviving spouse shall have a usufruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testatement. This usufruct terminates when the surviving spouse dies or remarries, whichever occurs first.”

Act No. 77 of 1996 regarding Louisiana Civil Code Art. 890. Commentary.

“This Article represents a policy decision to separate the multiple provisions of Article 890 of the Louisiana Civil Code, as it stood prior to the revision, and, in a more conceptually consistent approach, to use separate code articles to cover the different concepts. Like its predecessor (Civil Code Article 916 of the Code of 1870), Article 890 is located in the section of the Civil Code that deals with intestate succession. To the extent that the article provides a usufruct to a surviving spouse over community property inherited by descendants of the decedent, the article is appropriately placed. Over the years, however, amendments to the article (and its predecessors) have unduly complicated the article by expanding its application to matters of testate succession, such as authorizing a testator to grant a usufruct of separate property. Consequently, for reasons of stylistic purity and conceptual consistency, revised Article 890 deals only with a usufruct of the surviving spouse that arises by virtue of intestacy. A separate article covers issues of testacy, such as the ability of a testator to grant a usufruct over separate property, as well as other authorized impingements on the legitime.”

Usufruct to Surviving Spouse.Article 1499, Louisiana Civil Code.

“The decedent may grant a usufruct to the surviving spouse over all or part of his property, including the forced portion, and may grant the usufructurary the power to dispose of nonconsumables as provided in the law of usufruct. The usufruct shall be for life unless expressly designated for a shorter period.”

“A usufruct over the legitime in favor of the surviving spouse is a permisssible burden that does not impinge upon the legititme, whether it affects community property or separate property, whether it is for life or a shorter period, whether or not the forced heir is a descendant of the surviving spouse, and whether or not the usufructuary has the power to dispose of nonconsumables.”

Act No. 77 of 1996 regarding Louisiana Civil Code Art. 890. Commentary.

“(a) This Article is part of the effort to bifurcate the multiple provisions of former Civil Code Article 890, some of which dealt with testate succcession and some of which dealt with intestate succession. See Revisions Comments — 1996 to Article 890, supra. The Article makes clear that a usufruct over separate property in favor of a surviving spouse does not constitute an impingement on the legitime. In Succession of Suggs, 612 So.2d 297 (La.App. 5th Cir. 1992) it was held that a usufruct to a second spouse over separate property comprising the forced portion was not permitted. The repeal of former Civil Code Article 1752 in 1995 effectively overruled Suggs by removing it only theoretical support. This Article leaves no doubt that under any circumstances, whether by clarification or by overruling, a usufruct in favor of a surviving spouse may be imposed over the legitime, whether the legitime is community property or separate property, and whether or not the spouse is a parent of the forced heir.”

“(b) This Article also clarifies an issue that has not yet been resolved in the courts, which is whether the testator may grant the usufructuary the power to dispose of nonconsumables as provided in the law regarding usufruct in Civil Code Article 568. There is disagreement among scholars as to whether the grant of such authority would constitute an impingement on the legitime. To remove any doubt and to establish that the grant of that right would not constitute an impingement, the Article expressly so provides.

“(c) This Article does not supersede the provisions of the Louisiana Trust Code that protect a forced heir whose legitime has been placed in trust. See La.R.S 9:1841 et seq.”

“(d) This Article legislatively overrules the case of Succession of B.J. Chauvin, 257 So.2d 422 (La. 1972) which held that when the will “merely confirmed” the legal usufruct to a surviving spouse over community property without specifying that it was for life, the usufruct was not a lifetime usufruct. See also Darby v. Rozas, 580 So.2d 984 (La.App.3d Cir 1991), which involved a grant of a usufruct over a separate property, but which was settled while an application for writs to the Louisiana Supreme Court was pending. There is a transitional provision that continues this rule for testatments executed prior to the effective date of this Act.”