Article by Max Nathan, Jr.
This article is purposefully entitled An Assault on the Citadel because forced heirship has been virtually sanctified in Louisiana by the courts and the legal literature and has found a hallowed home in the Louisiana Constitution. This sanctification makes meaningful discussion difficult, but reexamination of the merits of forced heirship can only be productive. After all, Louisiana is the only state in the United States that has forced heirship. Texas is the only other state that has even tried it, and, after ten years experience, Texas repealed the system. A number of other civil law jurisdictions around the world, such as Quebec and most of Southeast Asia and South Africa, either have had forced heirship and have rejected it, or have rejected it at the outset. But my approach to this issue is not altogether negative, in the sense that I oppose forced heirship; it is also positive in that I strongly favor freedom of testation. A testator should have the right, subject to appropriate limitations as to public policy and morality, to dispose of his property as he pleases.
The thrust of my "assault on the citadel" is dual. The two major objections to forced heirship are (1) that it is unsound in theory and (2) that it is unsound in practice. With regard to theory, one must start by looking at the ancient origins of forced heirship, which began more than 2,000 years ago with unquestionable religious overtones. Indeed, it began as a rudimentary kind of ancestor worship. In Rome, forced heirship was designed to protect and preserve the sacra and the familia, the former involving a kind of cult to the individual household gods, and the latter referring to the organization of the family and the power vested in its head. Over the following two millennia, as forced heirship grew and developed in Rome, Germany, France, and Spain, it underwent literally hundreds of variations, particularly with respect to the rules and requirements for enforcement and the percentages of reserved portions for designated heirs.
About the Author
Max Nathan, Jr. Professor of Law, Tulane University; J.D. 1960, Tulane University. Member of the Bar, New Orleans.
[Editor's Note] The following articles by Messrs. Nathan and Lemann were the basis of a debate over the merits and continued viability of forced heirship in Louisiana. The debate took place in September 1976 at the Louisiana State University Law Center. Professor Le Van subsequently delivered the substance of his article in a speech to the Bartolus Society of New Orleans in November 1976. The Review felt that the arguments raised by the authors should be preserved in one place.
Citation
52 Tul. L. Rev. 5 (1977)