When men and women are married more than once and fail to do wills, they are doing a great disservice to their spouse at death. Unfortunately, some surviving spouses (usually women) are devastated to learn they have no ownership in the house they’ve lived in for years with their second or third spouse. This frequently happens when one spouse moves in to the other spouse’s home, no transfer of partial ownership is done and recorded, and no will is written.

For example, Susie had come through a brutal divorce and came out of her first marriage with a poor credit rating. When she and John decided to get married, they realized that he would get a better interest rate than they could together. Shortly before they were married, John bought a home. It was purchased and financed in John’s name only. Therefore, this property was his separate property coming into the marriage.

John had one child from his first marriage and Susie had two children from her first marriage. They were married many, many years and each participated in the raising of the other’s child(ren). Everyone got along really well.

John was killed suddenly in a one car accident when he lost control of his vehicle on a slick wet road late at night. John and Susie had never done wills. The problem was that their home was really his home for inheritance purposes. Since the house was his separate property, Susie had no ownership in the house. According to the Louisiana’s laws of intestacy separate property goes to the blood relatives of the deceased, not the surviving spouse. Therefore, this house was owned by John’s two children, not Susie.

The ideal situation would have been for John to donate half of the interest in his house to Susie during the marriage and to have written a will giving her the house at his death. Since all the children were adults for inheritance purposes and not disabled, John could have left everything he owned to Susie. The laws of intestacy apply when there is no will. Some cases have good endings. This one did with John’s two children donating the house to Susie, as they believed it was rightly hers anyway.

Some cases do not end so well, such as in Alice’s situation. Alice and her second husband had lost their first spouses in tragic accidents. Tom had no children by his first wife or with Alice. Alice had several children with her first husband. They purchased a house, or at least Alice thought she was purchasing a house.

Alice believed she was signing as a co-owner. However, the recorded Act of Sale showed that Alice was acknowledging that the residence was being purchased by Tom with his separate funds as separate property. Alice had credit problems from her first marriage which is probably why it was handled in this manner.

Tom never signed a will. Therefore, the State of Louisiana had one for him. According to La Civil Code art. 891 as Tom had no children , Tom’s separate property went to his siblings subject to a usufruct in favor of his mother for life who had survived him. Alice was not as fortunate as Susie as Tom’s siblings forced her to move out of the house. As she was not a well person and could not work, she moved back in with her mother.

The ideal situation would have been for Tom to protect his wife by executing a simple one page will leaving her everything.

Everyone should have a will and everyone should review their wills periodically. This writer wants to encourage everyone who has an old usufruct will to have a new will executed. Once all the children are grown and gone, and none are permanently disabled, spouses can leave everything to each other. Usufruct wills cause unnecessary problems for the surviving spouse.

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