By: W. Lake Hearne
Representation in Successions
The old saying is that truth is stranger than fiction, but in the case of representation in successions, fiction can be stranger than the truth. “Representation is a fiction of law, the effect of which is to put the representative in the place, degree and rights of the person represented.”
La. Civ. Code Article 881. Representation takes place in the direct line of descendants of the deceased and in the line of descendants of siblings of the deceased, but representation does not take place with other collaterals or ascendants.
La. Civ. Code Articles 882, 883 and 884.
Representation can only take place in intestate successions. Representation usually is very straightforward. For example, A has two children, Son and Daughter. Son has two children (Grandchild 1 and Grandchild 2), and Daughter has one child (Grandchild 3). Son and daughter both predecease A.
When A dies intestate survived by Grandchildren 1, 2 and 3, these grandchildren inherit from A by
representing their parents, that is, by the legal fiction which puts them in place of their parents with respect to A’s succession. Grandchild 1 and Grandchild 2 receive what would have been Son’s inheritance in equal shares, and Grandchild 3 receives what would have been Daughter’s inheritance.
However, it is important to keep in mind that these grandchildren are
through their parents, but are fictionally positioned
in the place of their parents. This distinction can have dramatic effects that are not self-evident. For instance, the effect of a renunciation by a grandchild of the succession of his parent does not preclude representation. Thus, in the above example, if Grandchild 3 had renounced the Succession of Daughter, he nevertheless may participate in A’s succession by representation.
La. Civ. Code Article 886 (“one who has renounced his right to succeed to another may still enjoy the right of representation with respect to that other”).
By the same token, even if Daughter had disinherited Grandchild 3, Grandchild 3 nevertheless may participate in A’s succession because disinherison by a parent only deprives a forced heir of his legitime and does not affect the grandchild’s ability to represent his parent. Thus, Grandchild 3 may be prevented from representing Daughter only if A exercises his independent right to disinherit grandchildren.
La. Civ. Code Article 1622.
There are situations where an heir who has not predeceased his parent nevertheless is treated as having predeceased his parent. For example, if Daughter attempted to murder A, she subsequently may be declared unworthy and excluded from A’s succession, but Grandchild 3 nevertheless may represent Daughter in A’s Succession.
La. Civ. Code Art. 946. Similarly, if Daughter survives A but renounces his succession, Grandchild 3 nevertheless may represent Daughter in A’s Succession.
La. Civ. Code Art. 964.
Thus, we see that Louisiana’s law of intestacy favors descendants notwithstanding the actions of intermediary persons who otherwise might have been heirs. But there are limits to who can participate by representation.
First and foremost, one must be a descendant of the decedent. Suppose that in the above example, Son’s two children have different mothers. Grandchild 1 was born during the marriage of his mother and Son, and Son is presumed to be his father, i.e. Grandchild 1 is
filiated with Son. However, Grandchild 2’s parents never married, Son did not acknowledge Grandchild 2 as his child, Son never adopted Grandchild 2, and neither Son nor Grandchild ever filed an action of filiation. Grandchild 2 is not
filiated with Son. Under these circumstances, Grandchild 2 is not presumed to be a descendant of A and does not represent Son in A’s succession.
Second, one may not become a representative through the benevolence of others. This is illustrated in a chain of title that I encountered recently which is adapted to our example of Grandchild 2 who was not filiated with Son. Upon Son’s death, Grandchild 1 wanted his half-brother to be treated equally in the succession of A, and so he conveyed one-half of all of his interest in
Son’s estate to Grandchild 2. That suffices to allow Grandchild 2 to acquire 1/2 of Son’s estate, but because representation does not depend upon succession, but rather, upon the status as a descendant, Grandchild 1’s conveyance does not bestow upon Grandchild 2 the right to represent Son (along with Grandchild 1) in A’s succession. In order for Grandchild 1 to allow Grandchild 2 to share in the Succession of A, it is necessary that he also convey one-half of his interest in
A’s succession. Note that if this beneficence were attempted by Grandchild 1 prior to A’s death, it would be ineffective because the succession of a living person may not be the object of a contract.
La. Civ. Code Art. 1976.