LEGAL CORNER: Can a succession wait until after both spouses die?

LEGAL CORNER: When a person dies before his spouse, does a succession need to be done?

LAKE CHARLES, La. (KPLC) - Submit your questions to news@kplctv.com. Civil matters only, please.

QUESTION: When a married person has a will and he dies before his spouse, does a succession need to be done or can it wait until the spouse dies too?

ANSWER: Generally, a succession must be done as soon as practicable after the decedent spouse’s death. Delay in opening the succession may cause problems, especially if the surviving spouse is the decedent spouse’s legatee. A person has thirty years to claim their right to an inheritance. That thirty-year period runs from the date of the death of the decedent.

Louisiana Civil Code Article 3502 states that an action for the recognition of a right of inheritance and recovery of the whole or a part of a succession is subject to a liberative prescription of 30 years. Louisiana Civil Code Article 934 states that the Commencement of a Succession occurs at the death of a person.

QUESTION: My daughter is married and was living in another state with her spouse for over ten years. Earlier this month, she moved out of the home she was living in with her spouse and moved back to Louisiana. She wishes to file for a divorce. Can she file her divorce here in Louisiana?

ANSWER: Louisiana Code of Civil Procedure Article 10 (7) states that a Louisiana court has jurisdiction over an action for divorce, if, at the time of filing, one or both of the spouses are domiciled in this state. Louisiana Civil Code Articles 38 and 39 infers that Domicile is defined as a physical presence plus intent to reside. If the daughter intends to remain in Louisiana, she will need to ensure that she has proof that she intends to remain such as changing her driver’s license or voter registration.

QUESTION: My spouse and I are still living together but are planning to separate. I do not want to get a divorce, but would like to file for a legal separation. I was told that I cannot file for one as the law on legal separation has been repealed. Is that true?

ANSWER: The law on separation from bed and board was repealed by the Louisiana Legislature in 1990. However, if you and your spouse had agreed to and contracted into a covenant marriage at the time that you got married, your marriage application, marriage license and marriage certificate must state that your marriage is a covenant marriage. If that is the case, then you could sue your spouse for a legal separation in the parish where you reside or where the two of you lived together. However, before a judgment of divorce can be sought, you must be living separate and apart without reconciling for a period of one year from the date the judgment of separation was signed. If you have minor children, then the period is one year and six months from the date the judgment of separation was signed. If you did not indicate that your marriage is a covenant marriage, then the law on divorce will apply.

Please note, if you and your spouse own property together and wish to separate it, you can do a separate property agreement without filing for divorce.

Louisiana Revised Statute 9:307(6)(a) states that the spouses must have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed. Louisiana Revised Statute 9:307(6)(b) states that if there is a minor child or children of the marriage, the spouses have been living separate and apart continuously without reconciliation for a period of one year and six months from the date the judgment of separation from bed and board was signed.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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