Article on Eliminating the 890 Usufruct to Protect the Blended Family

Katherine H. Dampf recently published a comment entitled, Happily Ever After: Eliminating the 890 Usufruct to Protect the Blended Family, 74 La. L. Rev. 899-935 (2014).  Provided below is the introduction of the comment:

Cinderella lived happily ever after,1 but what became of her wicked stepmother, the Lady Drizella Trumaine?2 Imagine that this classic tale was set in Louisiana and that in the years following Cinderella’s storybook wedding, Cinderella’s father and Drizella spent the remainder of their lives together. Though they were happy, they were not particularly wealthy, and Cinderella’s father never drafted a will. When Cinderella’s father died, Louisiana law granted Drizella an interest in his share of the marital property in the form of a usufruct.3 However, although Drizella was relieved to learn that she would be permitted to use and enjoy her husband’s property in the years following his death, she was dismayed when she learned that Louisiana law also granted Cinderella an interest in the same property, effectively forcing Drizella to share her former husband’s property with her ungrateful stepdaughter.4

One might imagine that this sharing of interests would not be the most optimal arrangement, considering that the two did not have the most natural and affectionate relationship.5 Drizella’s interest only allows her the right to use the property and collect its fruits.6 Consequently, she may encounter financial difficulties if the property does not generate income in the form of civil fruits—like rents or dividends—because she is precluded from selling the property to create liquid income. Given the tumultuous relationship between Cinderella and her wicked stepmother, Cinderella would feel no duty to come to Drizella’s aid. Indeed, Cinderella’s contempt for Drizella might only be exacerbated by a legal scheme that effectively deprives her of any right to her father’s estate while her stepmother is still living and unmarried.7 Louisiana’s default inheritance regime, designed both to approximate the will of the decedent and provide for those left behind, serves no one in this blended family.

A decedent who dies intestate—without a will—necessarily does not express desires regarding the property left behind. Instead, intestacy law imposes a “statutory will” on the decedent.8 Many states have had to rethink traditional intestacy rules to address the new social phenomenon of intestate succession involving a stepparent and a decedent’s children,9 referred to in this Comment as the “Cinderella Problem.”10 Louisiana Civil Code provisions governing intestacy were made with “the family of the Civil Code”11 in mind: a traditional, nuclear family that has become increasingly rare in modern society.12 An artifact from a departed era during which the traditional, nuclear family was bound by lifelong affection, Louisiana’s “statutory will” is out of sync with the modern family. Today, more than one-third of all Americans are members of stepfamilies,13 18% of American adults have a living stepparent,14 and most Americans die without wills.15 With a divorce and remarriage rate higher than the national average,16 Louisiana must do more to balance the competing interests of a blended family in intestacy.

Because Louisiana law fails to adequately address the combination of the stepfamily and intestacy, Louisiana law allows for the dynamic between Cinderella and Drizella to exist to their mutual detriment. Louisiana’s failure to address the needs of the stepfamily in intestacy is made even more apparent by the fact that other jurisdictions—both civil and common law—addressed stepfamily inheritance long ago.17 Louisiana should follow in the footsteps of its sister states and of France, its civilian predecessor, to better address the Cinderella Problem, recalibrating intestacy laws with today’s blended family in mind and preventing injustices like those suffered by Cinderella and Drizella from befalling others.

Accordingly, this Comment considers the failure of Louisiana’s current succession law in the context of the stepfamily. Part I of this Comment discusses the theories underlying succession law, highlighting the role of these theories in intestacy and arguing that they require a careful balancing of the interests of the children and the surviving spouse of the decedent. Part I also details the societal evolution of the family from nuclear to blended, illustrating how the implementation of the theories of succession has become even more problematic. Next, Part II overviews the approach taken by Louisiana to the stepfamily in intestacy, both in the past and in the present, and demonstrates that Louisiana’s current approach is inadequate in several critical respects. Part III then evaluates the merits of approaches to the Cinderella Problem taken by France and other jurisdictions. Finally, in order to solve the predicament facing Cinderella and Drizella, Part IV proposes that a lump-sum-plus-afraction, rather than a usufruct, be allotted to Drizella. A revision of Civil Code article 890 in the context of the stepfamily is long overdue; Louisiana needs to do more for Cinderella and Drizella.