624 So.2d 1156 (La. 1993), 93-CA-0034, Succession of Lauga

Docket Nº:93-CA-0034.
Citation:624 So.2d 1156
Case Date:September 10, 1993
Court:Supreme Court of Louisiana

Page 1156

624 So.2d 1156 (La. 1993)


No. 93-CA-0034.

Supreme Court of Louisiana.

September 10, 1993

Rehearings Denied Nov. 4, 1993.

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Richard P. Ieyoub, Atty. Gen., Dale Charles Wilks, Melinda M. Tucker, William M. Detweiler, for applicant.

Michael C. Ginart, Jr., for respondent.

Ivor A. Trapolin, Miles G. Trapolin, for Hibernia Nat. Bank, amicus curiae.

Steven O. Medo, Jr., Charles E. Bruneau, Jr., for Carol V. Jurisich, amicus curiae.

Dominic N. Varrecchio, for Max Nathan, Jr., Donna J. Burmat, Laurie J. Henderson, Peter Jurisich, Alan Jurisich, Linda M. Mollere, Steven Jurisich, amicus curiae.

Vincent T. LoCoco, Frederick W. Swaim, Jr., for Patricia Vivian M. Brooks, amicus curiae.

Sidney M. Blitzer, Jr., for Sidney M. Blitzer, Jr., amicus curiae.

DENNIS, Justice. [*]

We are called upon to decide whether a law that purports to abrogate forced heirship's principle and right of equality of heirship among children is unconstitutional because it violates Article XII, Sec. 5 of the 1974 Louisiana Constitution, which declares that "[n]o law shall abolish forced heirship." Civil Code article 1493, as amended in 1989 and 1990, purports to extinguish forced heirship for persons who upon the death of their decedents are competent and 23 years of age. The trial court declared amended Article 1493 unconstitutional because it violates Article XII, Sec. 5 and because it arbitrarily, capriciously, or unreasonably discriminates against a person because of age in violation of Article I, Sec. 3 of our state constitution. The defendant and the intervenor appealed. La. Const. art. V, Sec. 5(D)(1). We affirm and amend the judgment to declare unconstitutional not only amended Article 1493 but also the amendatory acts of 1989 and 1990 in their entirety.

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The declaration that "[n]o law shall be passed abolishing forced heirship" originally was placed in the 1921 Louisiana Constitution to preserve the core principle of that legal institution--the equality of heirship between children as to a forced portion of their decedent's estate. The purpose of the constitutional provision was to further the state interests in the prevention of excessive concentrations of wealth and the promotion of family harmony and solidarity through deterrence of intra-family discord and litigation. Subsequently, our courts, commentators, and the legislature interpreted the constitutional provision as guaranteeing to every child an individual right to an equal share of a forced portion of his or her decedent's estate. According to the weight of scholarly commentary and juristic dictum, the constitutional provision allowed legislative enactment of implemental and regulatory laws subject to the limitation of these basic precepts.

Article XII, Sec. 5 of the 1974 Louisiana Constitution continues in effect the essential meaning of the law established under Article IV, Sec. 16 of the 1921 Louisiana Constitution. Article XII, Sec. 5 models its stipulations on the very similar provisions of the 1921 Constitution and the construction previously placed on those provisions by the jurisprudence. Accordingly, we conclude that Article XII, Sec. 5 guarantees the individual right of a child to an equal share of a forced portion of his or her decedent's estate and maintains the correlative public principle of equality of heirship, which furthers the goals of dispersion of wealth, family solidarity, and reduction of litigation. Subject to and not inconsistent with these basic precepts, the legislature may pass laws implementing and regulating forced heirship.

Civil Code article 1493, as amended in 1989 and 1990, is unconstitutional because it violates Article XII, Sec. 5 in three different but interrelated ways. First, the law violates and deprives each plaintiff of his individual right as a child to an equal share of a forced portion of his decedent's estate; furthermore, the law professes to abolish the right of forced heirship as an individual constitutional right and relegate it to the status of a statutory entitlement. Second, the law purports to abrogate completely Article XII, Sec. 5's guarantee of the core principle of equality of heirship among children with respect to a forced portion of their decedents' estates. Third, the law purports to render wholly ineffective the legal institution of forced heirship to further the state purposes for which it was elevated to constitutional status. In fact, the law promotes the very evils that the forced heirship guarantee was designed to combat, that is, the unjust disinheritance of children which leads to family disharmony and litigation among siblings and the concentration of family estates in fewer than all the children, to the economic detriment of society and the resulting impoverishment of the disinherited children. In sum, amended Civil Code article 1493 abolishes the legal institution of forced heirship with respect to all of its ends and purposes as effectively as would a simple repeal of all forced heirship laws.

Civil Code article 1493, as amended in 1989 and 1990, is the product of two legislative acts. Each act contains an invalid provision that violates Article XII, Sec. 5 of the 1974 Louisiana Constitution. The invalid portion of each act is not separable from the other provisions of the act. Therefore, the trial court judgment will be amended to declare wholly unconstitutional both amendatory acts.

It is not necessary for this court to reach the question of whether the law or laws also discriminate unconstitutionally against the plaintiffs and other children because of age.


Louis Lauga, Sr. died July 11, 1991, survived by his three children, Louis Lauga, Jr., Ray E. Lauga, Sr., and Glenn F. Lauga. All of the children were competent and over the age of twenty-three years at the time of Louis Lauga, Sr.'s death. The decedent, by statutory will dated September 5, 1990, left his entire estate to one child, Louis Lauga, Jr. On August 16, 1991, the will was probated and Louis Lauga, Jr. was placed in possession of his father's estate.

Ray E. Lauga, Sr. and Glenn F. Lauga filed suit against the succession of Louis Lauga, Sr. to annul their father's statutory

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will. In their petition, they challenged the constitutionality of Louisiana Civil Code article 1493, as amended by Act No. 788 of 1989 and by Act No. 147 of 1990, contending that the law violates Article XII, Sec. 5 and Article I, Sec. 3 of the 1974 Louisiana Constitution. The Attorney General was served pursuant to Louisiana Code of Civil Procedure article 1880. Louis Lauga, Jr. and the Attorney General moved for summary judgment declaring that the amendments to Civil Code article 1493 were constitutional. After considering briefs and oral arguments, the trial court declared Civil Code article 1493, as amended in 1989 and 1990, unconstitutional because it violates Louisiana Constitution Article I, Sec. 3 and Article XII, Sec. 5 (1974). From the declaration of unconstitutionality, Louis Lauga, Jr., as defendant, and the Attorney General, as intervenor, appealed. La. Const. art. V, Sec. 5(D)(1).

I. The Concept of "Forced Heirship" Prior to the 1974 Louisiana Constitution: Early History, Elevation to Constitutional Status, Public Principle and Individual Right, Judicial and Scholarly Interpretation

Civil law systems typically protect children of all ages, and sometimes ascendants and other descendants, from disinheritance by securing to them a minimum share of their decedent's estate which cannot be defeated by mortis causa or inter vivos gratuitous donations. Glendon, Family Law Reform in the 1980's, 44 La.L.Rev. 1553, 1570 (1984). See also, 3 Yiannopoulos, Louisiana Civil Law Treatise--Personal Servitudes Sec. 21 at 51 (1989). From its beginning in about 1700, Louisiana's forced heirship doctrine followed this basic civil law concept while modelling its particular provisions on French and Spanish sources. In 1921, forced heirship was elevated to the status of a constitutionally protected legal institution. Article IV, Sec. 16 of the 1921 state constitution contained a prohibition declaring that "[n]o law shall be passed abolishing forced heirship...." Subsequently, our courts and commentators interpreted this provision not only as a limitation upon the power of the legislature to abolish forced heirship and as a grant of constitutional protection to the legal institution to further important social purposes but also as a guarantee of the individual constitutional right of every child to a forced portion of his or her decedent's estate.

  1. Early History

    The doctrine of forced heirship has prevailed in Louisiana since its colonization by French settlers at the beginning of the eighteenth century. Continuously during Louisiana's history as a colony, territory, and state, its laws have imposed a general restriction upon every person's ability to gratuitously dispose of property, i.e., in cases when the disposing person had an heir who was his lineal relative, his gratuitous dispositions could affect only a portion of his estate; the balance was reserved to his descendant or ascendant heirs, who were called forced heirs.

    The French royal charters extended forced heirship to Louisiana as part of the Laws and Custom of Paris. For over half a century without interference the Louisiana settlers adhered to the traditions of the French law as faithfully as did their kin back in France. The French cession of Louisiana to Spain had no effect upon forced heirship because the institution was equally emphasized in the law of both countries. After France regained Louisiana and conveyed the territory to the United States, the conflict between the invading common law and the entrenched civil law was sharp, but the inhabitants' strong...

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