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Louisiana Community Property After Death
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Louisiana Community Property After Death

How Louisiana sorts community from separate property after a death: the one-half rule, the presumption of community, and what actually passes in a succession.

By Settled Editorial

When a married person dies in Louisiana, only half of the couple's community property enters the succession. Each spouse owns a present undivided one-half interest in it (La. Civ. Code art. 2336), so the survivor's half was never the decedent's to give away. Sorting each asset into community or separate is the first real task in the case.

Louisiana calls the court process a succession, not "probate," and there is no separate probate court. A succession runs through the district court in the parish where the decedent was domiciled at death, filed with the parish Clerk of Court. This page is general information, not legal advice.

Only Half the Community Enters the Succession

La. Civ. Code art. 2336 states the rule in one sentence: "Each spouse owns a present undivided one-half interest in the community property."

The word present is doing the work. A surviving spouse's half is not something they receive at the death, and it is not an inheritance. They owned it the whole time. Nothing in a testament can redirect it, because a person can only dispose of what belongs to them.

So the succession inventory covers the decedent's one-half of the community, plus all of the decedent's separate property. Get that split wrong and every later number is wrong: the debts that can be charged, the surviving spouse's rights, the shares that pass under Louisiana intestate succession, and the accounting the succession representative files.

Two limits apply while both spouses are alive, and they surprise people:

  • Neither the community nor things of the community may be judicially partitioned before the regime ends (art. 2336). Spouses may still partition voluntarily without court approval, and whatever each one takes in that partition becomes separate property.
  • A spouse may not alienate, encumber, or lease their undivided community interest to a third person before the regime terminates (art. 2337). One spouse cannot quietly sell "their half" of the house.

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What Counts as Community Property

La. Civ. Code art. 2338 lists what the community comprises:

  • Property acquired during the regime through the effort, skill, or industry of either spouse. Wages, salary, and business earnings sit here.
  • Property acquired with community things, or with community and separate things together, unless art. 2341 classifies it as separate.
  • Property donated to the spouses jointly.
  • Natural and civil fruits of community property, meaning rent, interest, and similar yield.
  • Damages awarded for loss or injury to a thing belonging to the community.
  • All other property not classified by law as separate.

That last line is a catch-all, and it decides most close calls. If an asset does not fit a separate-property category, it is community.

What Counts as Separate Property

Under art. 2341, a spouse's separate property "is his exclusively." It comprises:

  • Property acquired before the community regime began.
  • Property acquired with separate things, or with separate and community things when the value of the community things is inconsequential compared with the separate things used.
  • Property acquired by inheritance or by donation to that spouse individually. An inheritance received during the marriage does not become community merely because the marriage was ongoing.
  • Damages awarded to a spouse for breach of contract against the other spouse, or for loss caused by the other spouse's fraud or bad faith in managing community property.

Separate property does not pass to the surviving spouse the way a community half does. It follows its own order under La. Civ. Code arts. 891 through 896, and under art. 894 the surviving spouse takes separate property only when no descendants, parents, or siblings survive.

Everything Is Presumed Community Until Proven Otherwise

This is the rule that decides contested cases. Under La. Civ. Code art. 2340, things in the possession of a spouse during the community regime "are presumed to be community, but either spouse may prove that they are separate property."

The burden falls on whoever claims an asset is separate. Saying an account was funded with an inheritance is not enough. The claim has to be traced with records: the source of the funds, the dates, and an unbroken line from the separate source to the asset. Where separate money was deposited into a joint account and mixed with wages, tracing gets hard fast, and the presumption stands where the proof runs out.

For anyone gathering documents after a death, this decides what to keep. Old account statements, act-of-sale documents, succession judgments from a parent's estate, and donation paperwork are the evidence that rebuts the presumption later.

The Trap: Rent and Royalties From Separate Property

La. Civ. Code art. 2339 catches almost everyone. The natural and civil fruits of a spouse's separate property are community property, not separate. So are minerals produced from or attributable to a separate asset, along with bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases.

Read that against a common Louisiana situation. One spouse inherits family land before or during the marriage. The land itself is separate. The royalty checks and the rent it produces are community, and half of that income belonged to the other spouse as it came in.

A spouse can opt out, but only in a specific form. Art. 2339 lets a spouse reserve those fruits as separate property by a declaration made in an authentic act, or in an act under private signature duly acknowledged, and a copy of the declaration must go to the other spouse before it is filed. When a family says the mineral income "was always his," the question is whether that declaration exists. If no one executed one, the income was community.

Domicile Decides, Not Where You Married

La. Civ. Code art. 2334 sets the reach of the regime: it "applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage."

A couple who married in Texas or Mississippi and later moved to Louisiana are under the Louisiana community regime for what they acquire while domiciled here. The wedding location does not matter, and neither does where they lived when they married. Couples who moved into the state partway through a marriage often hold a mix: property governed by another state's law from the earlier years, and community property from the Louisiana years.

Spouses can also change the default by matrimonial agreement, which is how a couple ends up separate in property. Where the succession involves an out-of-state move or a marriage contract, that document controls the classification and should be located before anything is inventoried.

What Happens to Each Half at Death

Once assets are sorted, two articles decide where the decedent's community half goes when there is no testament covering it.

No descendants: the survivor takes it outright. Under La. Civ. Code art. 889, if the decedent leaves no descendants, the surviving spouse succeeds to the decedent's share of the community property. Combined with the half they already owned, the survivor holds the whole community in full ownership.

Descendants survive: the survivor takes a usufruct. Under La. Civ. Code art. 890, the surviving spouse has a usufruct over the decedent's share of the community property, to the extent the decedent did not dispose of it by testament. The descendants take the naked ownership, meaning the title underneath. That usufruct "terminates when the surviving spouse dies or remarries, whichever occurs first."

The practical shape is a surviving spouse who can live in and use the family home while the children own the title. It matters for anyone selling inherited property: a usufructuary and the naked owners hold different rights in the same asset, so a clean sale generally needs all of them. The surviving spouse rights guide covers the usufruct, the marital portion, and forced heirship in full.

Separate property never falls under the art. 890 usufruct. That usufruct reaches community property only.

How Classification Drives the Rest of the Succession

The community-versus-separate sort is not a paperwork step. It sets the numbers everyone downstream relies on:

  1. The descriptive list or inventory. Only the decedent's half of each community asset is listed, along with all separate property. A filing that lists whole community assets overstates the estate.
  2. Debts. Whether an obligation was community or separate changes what it can be collected from.
  3. The forced heirship calculation. The legitime is computed on the mass of the succession, which depends on the classification being right.
  4. Who signs. A surviving spouse signs for their own half as an owner, not as an heir.

The succession representative carries this work, and it is the reason the role starts with gathering records rather than distributing anything. See Louisiana succession representative duties for the fiduciary obligations, and the Louisiana succession guide for how a case moves through the district court.

Frequently Asked Questions

Does my spouse's death give me half of everything?

No, and the distinction matters. You already owned half of the community property before the death, under La. Civ. Code art. 2336. You do not own any share of the decedent's separate property by virtue of the marriage. Separate property follows La. Civ. Code arts. 891 through 896, and under art. 894 a surviving spouse takes it only when no descendants, parents, or siblings survive.

Is money I inherited during the marriage community property?

No. Under La. Civ. Code art. 2341, property acquired by inheritance or by donation to one spouse individually is that spouse's separate property. Two cautions: the income that inheritance produces is community under art. 2339 unless reserved by declaration, and if you deposited the inheritance into a joint account and mixed it with wages, the art. 2340 presumption of community applies and you carry the burden of tracing it.

Who has to prove an asset is separate?

The person claiming it. La. Civ. Code art. 2340 presumes that things in a spouse's possession during the regime are community, and either spouse may prove otherwise. Proof means records that trace the asset to a separate source, not a recollection of intent.

We married in another state and moved to Louisiana. Are we community property?

For what you acquire while domiciled in Louisiana, yes. La. Civ. Code art. 2334 applies the legal regime to spouses domiciled in this state regardless of where they were domiciled when they married or where the marriage took place. Property acquired before the move is governed by the law that applied then, so a succession after a mid-marriage move usually involves both.

Can one spouse sell their half of the house during the marriage?

No. La. Civ. Code art. 2337 prohibits a spouse from alienating, encumbering, or leasing their undivided community interest to a third person before the regime terminates. Spouses may voluntarily partition community property between themselves without court approval under art. 2336, and what each takes in that partition becomes separate property.

Are oil and gas royalties from land I inherited separate?

The land is separate under art. 2341, but the royalties are not. La. Civ. Code art. 2339 makes minerals produced from or attributable to a separate asset, along with bonuses, delay rentals, royalties, and shut-in payments from mineral leases, community property. A spouse may reserve them as separate by a declaration in an authentic act or an act under private signature duly acknowledged, with a copy delivered to the other spouse before filing. Without that declaration, the income was community.

Related Guides

Sources

This guide is general information about how Louisiana classifies community and separate property after a death. Louisiana is a civil-law, community-property state, and classification turns on facts specific to each marriage, including matrimonial agreements, the source of funds, and any declaration reserving the fruits of separate property. It is not legal advice. For advice about a particular succession, consult a Louisiana succession attorney.

Information current as of August 12, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Louisiana can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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