The Medicated Heir & The Application of Civil Code Section 1493(E)
By: Kyle C. McInnis

Perhaps no other tenet of Louisiana law is more unique and revered than the concept of forced heirship. Forced heirship is intended to guarantee descendants a portion of their ancestor's estate, regardless of that ancestor's testamentary intent. Since 1995, however, this legally guaranteed right is given only to certain descendants.

Forced Heirship Basics

In response to the passage of the 1995 amendment to Article XII, Section 5 of the Louisiana Constitution, the legislature rewrote Louisiana Civil Code Article 1493 in 1996. This article now provides the modern definition of a forced heir. First degree descendants (children) under the age of twenty-four (24) years and first degree descendants of any age "who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates" at the time their ancestor dies are "forced heirs."

In addition to these defined forced heirs, descendants of forced heirs can become forced heirs themselves through representation. The children of a predeceased child who would have been less than twenty-four (24) years old at the time of such child's death are forced heirs of the child's parent. Lastly, a child of a predeceased first degree descendant who, "because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent's death" is also a forced heir of the decedent. This last type of representation takes place regardless of the age of the predeceased child. (Note that representation ends at the children of a descendant of the first degree. Great-grandchildren and below are not able to represent their parents and grandparents simultaneously.)

Thus, an estate planner may never completely eliminate the possibility of forced heirs asserting their rights to a decedent's assets in a succession proceeding, unless no children or grandchildren survive the decedent. A child or grandchild is always just a diagnosis or accident away from forced heirship rights through disability. There is a persistent possibility that a child or grandchild might become permanently disabled before the decedent's death and therefore become a forced heir under Civil Code Article 1493, either directly or through representation.

Whether a descendant is under twenty-four (24) years of age is a fairly simple determination, even to the math-challenged. Determining whether a descendant is "permanently incapable of taking care of their persons or administering their estates," however, can be an extremely complicated determination. The remainder of this article explores where the boundaries (if any) lie on the disabled forced heir definitions, the role of modern pharmaceuticals in these boundaries, and explores two recent cases interpreting the forced heirship provisions of the Louisiana Civil Code.

The Expansion of Disabled Heirs

When first passed in 1996, Louisiana Civil Code Article 1493 provided only the sparse language of disability quoted above. These definitions were focused on the results of the disability, not the cause. If the end result of the heir's condition was the permanent inability to care for their person or property, the heir could assert their forced heirship rights. These definitions also assume that the heir's disability is present and permanent at the time of the decedent's death, rather than diagnosed at such time, but permanently disabling in the future.

In an apparent attempt to extend forced heirship rights to children who may be diagnosed with a disease that, while not sufficiently disabling at the time of the decedent's death, will become permanently disabling in the future, the Louisiana legislature added the grey glob of section (E) to Article 1493 in 2003. It provides an avenue of protection for a specifically defined subset of the permanently disabled class of purported forced heirs. It reads:

"E. For purposes of this Article ‘permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent' shall include descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future."

Controversy and Criticism

After its enactment, subsection (E) was widely criticized as vague, uncertain, and even unconstitutional under the Louisiana Constitution. The criticisms of the subsection's merits focused largely on the term "may render them." Accustomed to dealing with theoretically sound standards such as a "preponderance of the evidence" or "beyond a reasonable doubt," it is not surprising that lawyers would react to a standard of "may" with befuddlement. What are the probabilities that a purported forced heir must show and how much evidence is needed to rebut such a showing? The statute and its attending comments provide no guidance.

Adding to this confusion are related inquiries prompted by modern medical science that are the focus of this article. What if the forced heir has a condition that could lead to permanent disability, but that condition is treatable through reasonable medication?

LSU Law Professor J.-R. Trahan offered an able defense of the legislation in his 2004 article in the Louisiana Law Review. He dismissed critical arguments regarding "may" stating that it should be read in light of its purpose, namely to provide for those descendants in need. Thus, an "infinitesimal" probability of incapacity should be ignored even if it could potentially lead to disability.

In addition, Professor Trahan flatly dismisses any argument that a forced heir under subsection (E) could lose that status if his condition were treatable with reasonable medication. "If the legislature had intended to exclude ‘treatable' diseases from the scope of the paragraph, it could and undoubtably would have said so." Through this reasonable conclusion based on statutory construction, it should make no difference if the descendant's condition is manageable or not. So long as the underlying condition is one that could result in the inability to care for the one's own person and property, the ailing descendant is a forced heir.

Critics can rightfully ask why such a result should be produced. If a descendant, through financially reasonable treatment that does not endanger the descendant's well-being, can live an otherwise completely normal and productive life, the law should recognize that fact and not ignore such treatment. If this reasonable treatment prevents the descendant from becoming permanently incapable of caring for their person or property, is such descendant a proper forced heir?

Disability and Treatment

If reasonable treatment can make the likelihood of the debilitating effects of the disability remote, it should be sufficiently unlikely that the disability "may render [an heir] incapable of caring for their persons or administering their estates in the future." Under such a reading, Article 1493(E) is read in light of its purpose, which is to provide financial means for those descendants in need. If a descendant's disability is readily treatable, then the probability that such disability produces the required incapacities is remote. Such probability should be ignored despite the fact that the heir could cause the disability to become more severe through refusal of such reasonable treatment. In essence, the law should presume responsible, reasonable behavior of the forced heir, unless his condition inherently impedes such behavior.

To date, there have only been two (2) overlapping cases regarding Article1493(E) and both have implicated the use of medication for treatment. The first was Succession of Ardoin. In that case, the decedent left her entire estate to her second husband. The decedent's daughter (born of mother's first marriage, of course) protested, suing for a reduction in the bequest. The plaintiff daughter suffered from bipolar disorder and argued that such condition made her a forced heir under Article 1493(E) because the debilitating effects of the disorder left her unable to properly maintain and care for her person and property.

After the trial court found that she was not a forced heir, the daughter appealed to the Louisiana Third Circuit Court of Appeals. On appeal, the court reversed the trial court and found the daughter to be a forced heir due to her bipolar condition. Because the daughter's condition was incurable and at times left her sufficiently incapacitated, she was a forced heir.

The daughter's condition, however, was not constant. At times, she could function normally, especially after taking prescribed medication. Despite these facts, the court maintained that she was permanently disabled. There were several facts that the court relied on, including that she was not "consistently employed," that she was eligible for and receiving government disability benefits, she needed assistance for some daily activities, and when acutely ill was completely "incapable of taking care of her affairs." The court relied on revision comment (c) to Article 1493 to explain away the fact that the daughter could function normally at times. But, because of her complete disability when her illness was most acute, the court maintained that she was a forced heir.

The role of medication was dismissed in Ardoin because of the testimony of the forced heir's psychiatrist. She stated that while bipolar disorder was incurable, "prescribed medications can help patients lead healthy and productive lives in that the frequency and severity of episodes may be reduced." But this did not seem to matter because the daughter had refused to take her medications at times. The psychiatrist stated that such refusals are "part of any psychotic disorder." Thus, the disorder counteracted its own cure perfectly.

The Third Circuit ruled on a similar case shortly after its decision in Ardoin. In Stewart v. Estate of Stewart, another bipolar heir sued to enforce her rights in the estate of her mother. In an analysis similar to Ardoin, the court held for the heir, reasoning that her condition left her incapable of caring for herself, if only for temporary periods of intense illness. The medical facts were much the same as in Ardoin and were uncontested by the succession.

Not only was medication mentioned in the Stewart decision, it was flatly dismissed as a mitigating factor based on the uncontested facts. The court noted that the succession never contested that the symptoms of the heir's conditions were a product of bipolar disorder and "not some other cause, such as failure to take medication." The court continued that such a showing was unlikely to persuade them, since "even with medication [the heir] does not reach an acceptable level of functioning." Could this language give an opening to deny a sufficiently functioning medicated heir his or her legitime?

Based on this scant evidence, it may be possible to deny the forced heirship of a purported heir based on reasonable treatment through medication. If medication enables the heir to "reach an acceptable level of functioning," is available at a reasonable price, and does not endanger the health of the purported heir, that treatment should remove the heir from the protective umbrella of forced heirship. One can readily agree that if the heir's disability prevents the effective delivery of such medication, the heir should rightfully find refuge in forced heirship. But, if one can say that reasonable treatment will prevent the required incapacity, a descendant should not be eligible for forced heirship.

Conclusion

Forced heirship is an ingrained feature of our state's civilian tradition. It protects the weak and mandates parental responsibilities. But, the concept should not be a blind machine. Forced heirship will always allow absurd results, but the law should not permit such rights to attach if the weak has already been made strong through other reasonable means. If an heir is treatable with medication that threatens neither the person nor his purse unreasonably, the law should not apply forced heirship without discretion. Instead, it should recognize that the heir is not permanently incapable of caring for their person or property because of such treatment.

Author Biography

Kyle C. McInnis is a shareholder at Cook, Yancey, King & Galloway, APLC in Shreveport, Louisiana. His practice focuses on tax law, corporate transactions, successions and estate planning. He is both a Board Certified Tax Law Specialist and an Estate Planning and Administration Specialist, certified by the Louisiana Board of Legal Specialization.

Keywords

Forced Heirship
Disability