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The New Forced Heirship Legislation: a Regrettable Louisiana Law Review Volume 50 | Number 3 January 1990 The ewN Forced Heirship Legislation: A Regrettable "Revolution" Katherine Shaw Spaht Kathryn Venturatos Lorio Cynthia Picou Cynthia Samuel Frederick W. Swaim Jr. Repository Citation Katherine Shaw Spaht, Kathryn Venturatos Lorio, Cynthia Picou, Cynthia Samuel, and Frederick W. Swaim Jr., The New Forced Heirship Legislation: A Regrettable "Revolution", 50 La. L. Rev. (1990) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol50/iss3/2 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. The New Forced Heirship Legislation: A Regrettable "Revolution" Katherine Shaw Spaht* Kathryn Venturatos Lorio** Cynthia Picou*** Cynthia Samuel**** Frederick W. Swaim, Jr.***** Table of Contents I. Introduction ........................................................... 411 II. Constitutionality of 1989 Louisiana Acts No. 788 ....... 412 Constitutionality Under Louisiana Constitution Article X II, Section 5 .................................................... 413 Intended Effect of the 1974 Revision of Article XII, Section 5 .................................. 414 Similarity of Act 788 to a Support Provision ...... 416 Support Provisions in Other Jurisdictions ........... 418 Likelihood of Violation of Article XII, Section 5 419 Constitutionality Under the Equal Protection Clause 420 Age Discrim ination .......................................... 420 Copyright 1990, by LOUISIANA LAW REviEw. * Jules F. and Francis L. Landry Professor of Law, Louisiana State University; author of sections entitled "The Repeal of Louisiana Civil Code Article 1492-Captation or Undue Influence" and "The New Forced Heirship: Interdicted or Subject to Being Interdicted." The author acknowledges with gratitude the assistance of Professor Jeanne Carriere of Tulane University Law School and Professor Lucy McGough of the Louisiana State University Law Center, both of whom shared their articles on the subject. ** Professor of Law, Loyola University; author of the section entitled "Constitu- tionality Under Louisiana Constitution Article XII, Section 5." The research assistance of Mary E. Torrens is appreciated. The aid of Professor Rodolfo Batiza and Professor John Rooney is gratefully acknowledged. *** Professor of Law, Southern University; author of the sections entitled "Section 5 of Act 788" and "Disinherison and Reconciliation." **** Professor of Law, Tulane University; author of the sections entitled "The New Forced Heirship: Child Under Twenty-Three," "The Modified Representation Rule Re- defines Child as Descendant of the First Degree," "The New Disposable Portion," "Section 4 of Act 788: Effective Date and Transitional Provisions," and "The Legislature, the Law Institute, and the Civil Code." ***** Professor of Law, Loyola University; author of the section entitled "Constitu- tionality Under the Equal Protection Clause." LOUISIANA LA W REVIEW [Vol. 50 Federal Equal Protection Analysis ..................... 421 Louisiana Equal Protection Analysis .................. 422 Jurisprudential Interpretation of Article I, Section 3 .................................................................. 422 Comparison of the Louisiana Equal Protection Pro- vision to Its Federal Counterpart ....................... 429 Illustration of the Effect of a Heightened Level of Scrutiny ......................................................... 432 The Legislative Purpose for Act 788 .................. 433 III. Definition of Forced Heirship Under the New Legislation ............................................................. 436 The New Forced Heirship: Child Under Twenty- T hree ................................................................ 436 Efforts of the Courts and Legislature to Eliminate Distinctions Among Heirs ................................. 436 Purpose of Classification by Age ...................... 436 The New Forced Heirship: Interdicted or Subject to Interdiction ........................................................ 438 Formal Interdiction Procedure ........................... 439 Subject to Interdiction ..................................... 441 Limited Interdiction ......................................... 442 The Modified Representation Rule Redefines Child as a Descendant of the First Degree .......................... 443 Former Louisiana Rule of Representation ........... 444 Inadequacy of the Twenty-Three Year Age Cutoff to Protect Vulnerable Heirs .............................. 445 The New Disposable Portion ................................ 447 Application of Prior Jurisprudence to Address the Problem of Inconsistent Shares of the Succession 448 Intestate Succession in Light of Act 788 ............ 450 The Effect of Act 788 on Collation .................. 450 IV. Other Provisions of Act 788 .................................... 452 Repeal of Louisiana Civil Code Article 1492-Cap- tation or Undue Influence .................................... 452 Vices of Consent ............................................. 454 Hatred, Anger, Suggestion, or Captation ............ 463 Is Undue Influence Captation? ....... 469 Social Costs of the Repeal of Article 1492 ......... 474 Section 4 of Act 788: Effective Date and Transitional P rovisions .......................................................... 474 Applying Law Inconsistently to Donations Inter V ivos ............................................................. 477 Problematic Issues Resulting From Unanticipated Situations ....................................................... 478 1990] FORCED HEIRSHIP 411 V. Section 5 of A ct 788 .............................................. 479 A Cryptic Provision ............................................ 479 Retroactivity ..... ............................ 480 Rights of Reversion ......................................... 480 Relevance of Rights of Reversion to Forced H eirship ......................................................... 482 VI. Disinherison and Reconciliation ............................... 484 Historical Perspective .......................................... 484 Rom an Law .................................................. 485 Early Germanic Law ....................................... 486 Pre-Code French Law ..................................... 488 The Code Napoleon ....................................... 489 The Spanish Law ........................................... 489 The Louisiana Civil Code and Jurisprudence ...... 490 Reconciliation in Louisiana ............................... 491 The 1989 Amendment to Article 1624 .................... 492 Scope of Application ....................................... 494 P rescription .................................................... 495 VII. The Legislature, the Law Institute, and the Civil C ode .................................................................... 496 I. INTRODUCTION This article is a labor of love. The authors have devoted approxi- mately ten years to defending the institution of forced heirship in writing and in testimony before legislative committees. We feel that the portion of a decedent's estate reserved for descendants is of such importance to the citizens of this state that it is worthy of our passion and zeal. It will be obvious to the reader that each author favors retention of the legitime for descendants regardless of their age. However, the con- tents of the article focus on the specific provisions of Louisiana Acts No. 788 (1989). The Act redefines descendants who are forced heirs as children under the age of twenty-three or those who are interdicted or subject to interdiction. For purposes of claiming the legitime, representation in the descending line is limited to descendants of a predeceased child who would have been under the age of twenty-three at the moment of the deceased's death. In an effort to afford protection to other descendants from unjust or inadvertent disinherison by a parent, the Act also repealed the prohibition against evidence of captation or undue influence. The result of the repeal is to permit such evidence in a will contest. In analyzing the provisions of the Act, the authors' first subject the new definition of forced heirship to constitutional scrutiny under both the United States and Louisiana Constitutions. After exploring the LOUISIANA LA W REVIEW [Vol. 50 purpose of redefining forced heirs as children under twenty-three years of age and children who are mentally or physically incapacitated, the authors examine the effect of the purpose on the Louisiana constitutional prohibition against abolishing forced heirship. More particularly, the meaning of "forced heirship" is examined in the context of that pro- hibition. The authors then analyze the legislation creating the new cat- egory of forced heirs twenty-two years or younger under the equal protection clauses of both the federal and state constitutions. Arguably, the legislation discriminates arbitrarily against those children twenty- three years of age and older. The remainder of the article concentrates upon the language of the statutory provisions contained in Act 788. Part II examines in detail the new definition of forced heirs-a child under age twenty-three and a child who is interdicted or subject to being interdicted. Related to the new definition is another provision modifying the rules of repre- sentation in
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