Succession Of Raymond John Brandt

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #040
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of September, 2022 are as follows:
BY Crichton, J.:
2021-CC-01521 SUCCESSION OF RAYMOND JOHN BRANDT (Parish of Jefferson)
AFFIRMED. SEE OPINION.
Hughes, J., dissents and assigns reasons.
Genovese, J., dissents for the reasons assigned by Hughes, J.
Griffin, J., dissents for the reasons assigned by
Hughes, J.

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SUPREME COURT OF LOUISIANA

No. 2021-CC-01521

SUCCESSION OF RAYMOND JOHN BRANDT

On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson

CRICHTON, J.

This matter arises out of a motion filed by Alexis Carroll Hartline and Zachary
Shawn Hartline in which they seek an interim allowance for their maintenance
during the administration of the succession of Raymond John Brandt (“Decedent”).
It is undisputed that the Hartlines are Decedent’s forced heirs by adoption
(hereinafter, the “Forced Heirs”) and that Decedent entered into a last will and
testament placing their legitime in trust. It is further undisputed that Decedent
designated the Forced Heirs as principal beneficiar ies of the relevant trusts and
designated his surviving spouse, Jessica Fussell Brandt (the “Surviving Spouse”), as
income beneficiary, thus granting her the sole right to any and all net income
generated by the estate property held in trust for the duration of her life.
We granted the Forced Heirs’ writ to review whether they are entitled to
receive the requested allowance as an advance on amounts they are “eventually due,”
pursuant to La. C.C.P. art. 3321.
1 For the reasons set forth herein, we find the Forced
Heirs cannot receive an interim allowance during the administration of Decedent’s
succession because they are not due, upon the termination of the administration, cash

1 La. C.C.P. art. 3321 provides, in pertinent part:
When a succession is sufficiently solvent, the surviving spouse, heirs, or legatees shall be
entitled to a reasonable periodic allowance in money for their maintenance during the
period of administration, if the court concludes that such an allowance is ne cessary,
provided the sums so advanced to the spouse, heirs, or legatees are within the amount
eventually due them. Such payments shall be charged to the share of the person receiving
them.
(Emphasis added.)

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and/or property from which cash may be made available . We thus affirm the
decision of the court of appeal and remand the matter to the district court for further
proceedings.
FACTS AND PROCEDURAL HISTORY
Decedent died on November 14, 2019, and was survived by his wife, the
Surviving Spouse, and her biological grandchildren, the Forced Heirs. Decedent did
not have biological children of his own, but he and the Surviving Spouse adopted
the Forced Heirs in October 2019, shortly before his death. The Forced Heirs were
under the age of 24 (19 and 23) at the time of Decedent’s death, and it is thu s
undisputed that they are Decedent’s forced heirs by way of adoption.2
On November 26, 2019, the Surviving Spouse petitioned for probate of a last
will and testament purportedly executed by Decedent as of Oc tober 24, 2019 (the
“2019 Will”). The 2019 Will revoked all of Decedent’s prior wills and codicils and
left his entire estate to the Raymond John Brandt Revocable Trust (the “Inter Vivos
Trust”), an inter vivos trust established pursuant to that certain trust instrument
originally dated as of January 16, 2015 (as amended, the “ Inter Vivos Trust
Instrument”). The district court probated the 2019 Will and confirmed the Surviving
Spouse’s appointment as the independent executrix of the succession.
Significant litigation has ensued since the probate of the 2019 Will as to
whether the 2019 Will and a prior purported last will and testament of Decedent ,
dated January 16, 2015 (the “2015 Will”) , are both invalid and absolutely null for

2 La. C.C. art. 1493(A) provides:
Forced heirs are descendants of the first degree who, at the time of the death of the
decedent, are twenty-three years of age or younger or descendants of the first degree of any
age who, because of mental incapacity or physical infirmity, are permanently incapable of
taking care of their persons or administering their estates at the time of the death of the
decedent.
La. C.C. art. 199 provides, in pertinent part: “Upon adoption, the adopting parent becomes the
parent of the child for all purposes and the filiation betw een the child and his legal parent is
terminated, except as otherwise provided by law.”

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failure to comply with the formal requirements of a notarial testament set forth in
La. C.C. art. 1577. If so, it remains unresolved whether a third purported last will
and testament of Decedent, dated March 19, 2010 (the “2010 Will”) , controls the
disposition of Decedent’s estate. But that question is not before us , nor would its
resolution affect our analysis herein. Relevant here, i t remains undisputed that,
under the terms of the trusts established under the 2010 Will and the terms of the
Inter Vivos Trust Instrument (applicable to the 2019 Will or the 2015 Will),3 neither
of the Forced Heirs is named as an income beneficiary or otherwise provide d a
beneficiary right to income or principal of Decedent’s residual estate during the
lifetime of the Surviving Spouse.
Under both the Inter Vivos Trust Instrument and the 2010 Will (together with
the Inter Vivos Trust Instrument, the “Trust Instruments”) , Decedent directs the
trustee or executor to transfer his estate, less certain specific bequests,4 to two trusts.
With respect to the first trust, the trustee or executor is directed to transfer an amount
in money or property equivalent to the largest amount of trust property that can pass
free of federal estate taxes, without including any transfers qualifying for the marital
deduction. Decedent’s residual estate is to be transferred to a “Q -TIP Trust,” with
respect to which the trustee or executor is directed to elect that any estate property
passing into the trust “be treated as qualified terminable interest property as defined
in Section 2056(b)(7) of the Internal Revenue Code for purposes of qualifying for

3 The 2015 Will, like the 2019 Will, directed that all of Decedent’s property be distributed to the
Inter Vivos Trust.
4 The Trust Instruments list specific property that is to be transferred to individuals, including the
Surviving Spouse and Forced Heirs, free of trust. According to records that were made under seal,
the district court issued judgments of partial possession, placing the trustee of the Inter Vivos Trust
in possession of certain of these assets at the request of the Surviving Spouse. The Inter Vivos
Trust Instrument also directs the trustee to establish a third, charitable trust, of which neither the
Surviving Spouse nor the Forced Heirs are beneficiaries. Relevant here, i t is not asserted by the
Surviving Spouse that the estate property distributed pursuant to these specific bequests are in
values exceeding the Forced Heirs’ legitimes.

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the marital deduction” under federal tax law 5 and that “no authorization, direction,
power or ot her provision contained in [the Trust Instrument] be exercised in a
manner that would prevent this Trust from so qualifying.”
For each of the foregoing trusts, Decedent, as settlor, directs the trustee to hold
and administer the property of his estate for the benefit of the designated
beneficiaries. The Surviving Spouse is designated the sole income beneficiary for
life, such that she is to receive “all” of the net income from the estate property held
in trust. The Forced Heirs are named as principal beneficiaries, each to receive 50%
of the estate property held in trust if they live until the termination of the trusts ,
which is determined to occur upon the later of the Surviving Spouse’s death or when
the younger of the Forced Heirs reaches 30 years of age .6 Spendthrift provisions
expressly prohibit the income and principal beneficiaries from voluntarily or
involuntarily alienating their respective interests in the trusts.7

5 26 U.S.C.A. §2056(b)(7) provides that “qualified terminable interest property” will be treated as
passing to the surviving spouse for purposes of the marital deduction set forth in 26 U.S.C.A.
§2056(b)(7) and defines such property, in pertinent part, as follows:
(B) Qualified terminable interest property defined.--For purposes of this paragraph--
(i) In general.--The term “qualified terminable interest property” means property--
(I) which passes from the decedent,
(II) in which the surviving spouse has a qualifying income interest for life,
and
(III) to which an election under this paragraph applies.
(ii) Qualifying income interest for life. --The surviving spouse has a qualifying
income interest for life if--
(I) the surviving spouse is entitled to all the income from the property,
payable annually or at more frequent intervals, or has a usufruct interest
for life in the property, and
(II) no person has a power to appoint any part of the property to any person
other than the surviving spouse.
(Emphasis added.)
6 The only distribution to which the Forced Heirs are conditionally entitled prior to the termination
of the trusts is a one-time $500,000 distribution, which the Trust Instruments direct the trustee to
make only if the Surviving Spouse’s death occurs before both Forced Heirs reach 30 years of age.
7 La. R.S. 9:1725(7) defines a “spendthrift trust” as “a trust under which alienation by a beneficiary
of an interest in income or principal is restricted to the full extent permitted by this Code.”

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On March 19, 2021, the Forced Heirs filed a “Motion for Interim Allowance
for Maintenance During Administration,” in which they argued they are entitled to
a monthly allowance for their maintenance during the period of administration of
Decedent’s estate, regardless of which of the purported testaments applies, pursuant
to La. C.C.P. art. 3321. The parties disputed the reasonableness and necessity of the
requested amount – $15,000 per person per month. However, in lieu of addressing
all issues related to the motion at once, the district court and parties agreed to a two-
step procedure, whereby the court would first addres s the Surviving Spouse’s
contentions that the Forced Heirs are not entitled to an allowance under La. C.C.P.
art. 3321 as a matter of law. If determined the Forced Heirs are not precluded from
receiving an allowance, a subsequent evidentiary hearing would be held to determine
whether such an interim allowance is necessary and, if so, a reasonable amount.
Accordingly, in the proceedings below the district court reviewed only whether any
allowance could be granted to the Forced Heirs.
Following a hearing on May 4, 2021, the district court granted the Forced
Heirs’ motion, finding they are entitled to a “ reasonable” periodic allowance in
money for their maintenance during the period of administration of Decedent’s
estate. Due to the bifu rcation of the issues described above, the court did not
determine what amount would be reasonable or necessary.
The Surviving Spouse appealed, arguing the Forced Heirs are not entitled to
any income until her death, including an interim allowance during the period of
administration, under either the 2010 Will or the 2019 Will. 8 The court of appeal
granted her writ application and held the Forced Heirs are not entitled to an interim
allowance for their maintenance, concluding as follows:

8 It appears that no party asserts applicability of the 2015 Will because its attestation clause suffers
from the same alleged defects as the 2019 Will. Accordingly, the partie s assume that either the
2010 Will or the 2019 Will applies to the disposition of Decedent’s estate. Because the 2015 Will
and 2019 Will both direct transfer of Decedent’s entire estate to the Inter Vivos Trust, these wills
are indistinguishable for purposes of the analysis herein. See Note 3, supra.

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It is undisputed that under the terms of whichever testament and/or trust
is controlling herein and as permitted by the Trust Code, Mrs. Brandt,
the surviving spouse, is the sole income beneficiary of Mr. Brandt’s
estate for life. As such, following the pe riod of administration , the
Hartlines are not entitled to any income from Mr. Brandt’s estate. Thus,
under the current facts and circumstances presented, we find that the
Hartlines are not entitled to “a reasonable periodic allowance in money
for their maintenance during the period of administration” of
Mr. Brandt’s estate pursuant to La. C.C.P. art. 3321. Therefore, we find
the trial court erred in granting the Hartlines’ “Motion for Interim
Allowance for Maintenance During Administration.”

Succession of Brandt, 2021-310, p. 7 (La. App. 5 Cir. 9/22/21), 2021 WL 4304750
at *4 (emphasis in original). Accordingly, the court of appeal reversed the district
court ruling and remanded to the district court for further proceedings. Id.
We granted the Forced Heir s’ writ application. Succession of Brandt, 2021 -
01521 (La. 1/19/22), 330 So. 3d 1074.
DISCUSSION
The primary issue before the Court is whether the Forced Heirs are entitled to
an interim allowance during the pendency of the administration of Decedent’s
succession under La. C.C.P. art. 3321. Because we interpret La. C.C.P. art. 3321 to
permit an advance where a legatee is due, upon the termination of the succession,
cash and/ or property from which cash may be made available , we first address
whether Decedent’s wills, whichever applicable, bequeath such rights to the Forced
Heirs. For the reasons set forth herein, we find the Forced Heirs are not entitled to
an interim allowance under La. C.C.P. art. 3321 per any of Decedent’s wills because
the Trust Instruments, which govern the estate property post -succession, designate
the Surviving Spouse as the “sole” income beneficiary and expressly prohibit
distribution of income to any other person, including the Forced Heirs, until the
termination of the trusts.
We next determine whether the Louisiana Trust Code, La. R.S. 9:1721, et seq.
(the “Trust Code”), nonetheless mandates such an allowance for the Forced Heirs’
health, education, maintenance, and support (“HEMS”) because their legitime is

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placed in trust. See La. R.S. 9:1841.9 For the reasons that follow, we find that HEMS
payments are not mandated by the Trust Code where, as here, a testator burdens the
legitime with an income interest or usufruct in favor of his surviving spouse, as
permitted by La. R.S. 9:1841(2) and La. R.S. 9:1844.10 We thus uphold the directive
in Decedent’s will that his surviving spouse, alone, receive all net income from the
estate property held in the applicable trusts until her death. Accordingly, we affirm.
This matter presents questions of law for which de novo review is required, as
the relevant facts are undisputed. See, e.g., Smith v. Robinson, 2018-0728, p. 5 (La.
12/5/18), 265 So. 3d 740, 744 (“Questions of law are reviewed de novo, without any
deference to the legal conclusions reached by the district court, as this court is the
ultimate arbiter of the meaning of laws of this state. ”). Specifically, the parties
acknowledge that the Forced Heirs will have no interest in the income of any trust
to which Decedent directs distribution of his estate , regardless of which of the
purported testaments applies. In addition to naming the Forced Heirs as the principal
beneficiaries, the Trust Instruments expressly direct that “all” net income from the
estate property held in the trust is to be distributed to the Surviving Spouse for the
remainder of her life. Moreover, with respect to the Q-TIP trusts, the testator-settlor

9 La. R.S. 9:1841 provides:
The legitime or any portion thereof may be placed in trust provided:
(1) The trustee after taking into account all of the other income and support to be received
by the f orced heir during the year shall distribute to the forced heir, or to the legal
guardian of the forced heir, funds from the net income in trust sufficient for the health,
maintenance, support, and education of the forced heir.
(2) The forced heir’s interes t is subject to no charges or conditions except as provided
in R.S. 9:1843, 1844, 1891 through 1906 and Subpart B of Part III of this Chapter.
(3) Except as permitted by R.S. 9:1844, the term of the trust, as it affects the legitime, does
not exceed the life of the forced heir; and
(4) The principal shall be delivered to the forced heir or his heirs, legatees, or assignees
free of trust, upon the termination of the portion of the trust that affects the legitime.
(Emphasis added.)
10 La. R.S. 9:1844 provides: “The legitime in trust may be burdened with an income interest or
with a usufruct in favor of a surviving spouse to the same extent and for the same term that a
usufruct of the same property could be stipulated in favor of the sa me person for a like period.”
(Emphasis added.)

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expressly directs that “no authorization, direction, power or other provision”
contained in the Trust Instruments be executed in a manner that would prevent
Decedent’s residual estate held in the Q-TIP trusts from qualifying as a “qualified
terminable interest property” for federal estate tax purposes . A mong the
requirements for so qualifying, which pertains to whether the transfers from the
estate to the trust may benefit from the marital deduction under the Internal Revenue
Code, is the condition that “the surviving spouse is entitled to all the income from
the property, payable annually or at more frequent intervals, or has a usufruct interest
for life in the property .” 26 U.S.C.A. §2056(b)(7)(B)(i) (emphasis added). In sum,
Decedent not only directed that the Forced Heirs would have no interest in the estate
property during the terms of all the relevant trusts but also expressly prohibited any
construction of the terms of the Q -TIP trusts that would permit distribution of
income from the estate property to any person other than the Surviving Spouse
during her lifetime.
Because of the parties’ agreement that the factual issues of the Forced Heirs’
request would be decided later , our review is limited to whether the Forced Heirs’
principal interests in Decedent’s estate is the type of interest that entitles them to an
interim allowance. While both parties evidently assume that an interim allowance
under La. C.C.P. art. 3321 is an advance on what the Forced Heirs will be due upon
the termination of the succession, the dissent nonetheless reasons that an interim
allowance should be granted because the Forced Heirs will receive the estate
property upon the termination of the trust or if none of the wills is upheld.11 We thus
begin our analysis with Article 3321’s plain language, which provides in pertinent
part:

11 In regards to the dissent’s argument that none of the wills may be found applicable, it is
noteworthy that the 2019 Will has been probated and that we do not review here a ruling on an
exception of prematurity or no right of action with respect to the Forced Heirs’ motion, as no party
asserts the dissent’s position.

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When a succession is sufficiently solvent, the surviving spouse, heirs,
or legatees shall be entitled to a reasonable periodic allowance in money
for their maintenance during the period of administration, if the court
concludes that such an allowance is ne cessary, provided the sums so
advanced to the spouse, heirs, or legatees are within the amount
eventually due them. Such payments shall be charged to the share of
the person receiving them. . . .
(Emphasis added). As the interim allowance must be within “the amount eventually
due” the Forced Heirs, the pertinent question, then, is whether the principal interests
to the property of Decedents’ estate held in trust is an amount with respect to which
an advance may be made under La. C.C.P. art. 3321.
Article 3321 expressly codifies a jurisprudential rule, rendering the case law
upon which it is based particularly helpful in construing its meaning. La. C.C.P. art.
3321, cmt (a) (expressing intent to codify the principles jurisprudentially adopted by
this Court in Succession of Broadaway, 3 La.Ann. 591 (1848); Succession of Ledet,
175 La. 225, 143 So. 56 (193 2), and Succession of Wengert, 180 La. 483, 156 So.
473 (1934)). In Succession of Broadaway, the administrator sold a portion of the
succession property for the purpose of paying debts of the succession and to support
the decedent’s widow and minor heirs. 3 La. Ann. 591. Reviewing whether the
administrator’s subsequent distributions to the widow and heirs were properly made,
this Court announced that a widow and her heirs can receive an interim allowance
pending the administration of the decedent’s estate, where it is established that the
succession is solvent, the succession is pending administration, and the advances are
necessary. Id. at 592. However, the Court stipulated that “ on a partition , those
parties will be considered as having received those amounts as advances on account
of their shares, and the administrator will be entitled to a credit for all such
payments.” Id. (emphasis added).
In Succession of Ledet, the executors appealed a judgment ordering them to
pay an allowance to the decedent’s widow and her two minor children. 143 So. 56.
The children, as forced heirs, were entitled to one half of the estate, and the widow,

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who was determined to be in necessitous circumstances, was entitled to one quarter
of the estate. Id. at 56 -57. Citing Broadaway, the Court held that an executor or
administrator of a succession can be compelled “to advance to an heir in necessitous
circumstances, during the administration of the estate, a monthly allowance for his
or her support, even though the allowance be safely within the amount eventually
coming to the heir.” Id. at 57. The Court again noted that the estate was solvent. Id.
In response to the executors’ claims that no funds were available for the payment,
the Court stated, “we have no doubt that the funds can be made available for such a
small payme nt.” Id. Implicit in this statement is that estate property held in
succession could be alienated or otherwise be made to produce cash in order to fund
the interim allowance due.
Finally, in Succession of Wengert, the Court affirmed a judgment ordering the
executor to pay to the widow $120.00 in monthly installments of $40.00. 156 So.
473, 492. The widow was a legatee of real estate valued at $3,000.00, and cash in
the amount of $770.00. Id. at 485. Finding that the esta te was solvent, the Court
reasoned that the succession administrator could be compelled to advance sums to a
widow in necessitous circumstances for her maintenance during the administration
of the estate. Id. at 492.
The facts of Broadaway, Ledet, and Wengert are inapposite to the present case
because these cases did not address whether an advance requested was within the
“amounts eventually due” to legatees who are bequeathed limited rights to estate
property.
12 We are guided nonetheless by their principles. In each of these cases, the

12 The laws of forced heirship did not allow a usufruct to impinge upon the legitime at the time an
interim allowance was sought on behalf of t he forced heirs in Broadaway and Ledet. A. N.
Yiannopoulos, Of Legal Usufruct, the Surviving Spouse, and Article 890 of the Louisiana Civil
Code: Heyday for Estate Planning, 49 La. L. Rev. 803, 825 (1989) (summarizing history of forced
heirship, including legislative amendments permitting a surviving spouse usufruct to impinge upon
the legitime, and noting “[i]n contrast to the prior law, there is no impingement on the legitime of
descendants when a spouse grants to the surviving spouse a usufruct over his entire estate.”). The
Trust Code, which was first promulgated in 1968, did not exist. If the allowance requested

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Court considered the allowance requested in relation to the amounts that would be
received at the judgment of possession and assuming the facts applicable at the time
the motion for interim allowance was considered. See, e.g., Broadaway, 3 La. Ann.
at 592 (tying the necessary advance to the amount that would be received by the
surviving spouse and heirs after the termination of the administration by stating “on
a partition, those pa rties will be considered as having received those amounts as
advances on account of their shares.”) (emphasis added).
Reviewing these cases and the language of La. C.C.P. art. 3321 together, we
discern that the apparent purpose of La. C.C.P. art. 3321, which is titled “Interim
allowance for maintenance during administration,” is to alleviate the burden a
succession administration may have on individuals who are owed something after
the period of administration and require an advance on the amounts they are owed.
See also 1A Frank L. Maraist, La. Civ. L. Treatise, Civ. Proc., § 5.18. (“Much of the
difficulty caused by the inclusion of the surviving spouse’s share of the community
into the succession of the deceased spouse is alleviated by special statutes. . . . While
the succession is under administration, the surviving spouse, heirs and legatees may
be entitled to advances upon the sums eventually due the m from the succession .
[La. C.C.P. art. 3321.]”) (emphasis added). If the estate property does not include
cash that can be distributed, but there is property to which the party requesting an
interim allowance is entitled that may produce cash – by alienation or otherwise –
the Court may order that cash be made available. See Ledet , supra. See also La.
C.C.P. art. 3261 (“A succession representative may sell succession property in order
to pay debts and legacies, or for any other purpose, when authorized by the court as
provided in this Chapter.”) (emphasis added). In sum, the quintessential question
these cases ask is whether the person requesting an interim allowance will be

exceeded the amounts due in full ownership in these cases, the Court made no distinguished
analysis thereof.

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“eventually due,” upon the termination of the succession administration, cash and/or
property from which cash may be made available in value exceeding the advance
requested. If so, and if the remaining requirements of La. C.C.P. art. 3321 are met,13
the requesting surviving spouse, heir, or legatee is entitled to an advance on their
rights.
In applying these principles to the facts at hand, w e look to the Trust Code
and to the terms of the relevant trusts to which Decedent’s estate may be distributed.
The Trust Code defines a trust as “the relationship resulting from the transfer of title
to property to a person to be administered by him as a fiduciary for the benefit of
another.” La. R.S. 9:1731. The terms of a trust are created by a settlor in accordance
with a trust instrument meeting the requirements of the Trust Code. La. R.S. 9:1761.
The person receiving title and administering the trust as a fiduciary is the trustee. La.
R.S. 9:1781. A “ [p]rincipal beneficiary” to the trust property is “a beneficiary
presently, conditionally, or ultimately entitled to principal” in the trust. L a. R.S.
9:1725(4). An “[i]ncome beneficiary,” by contrast, is “a beneficiary to whom income
is payable, presently, conditionally, or in the future, or for whom it is accumulated,
or who is entitled to the beneficial use of principal presently, conditionally, or in the
future, for a time before its distribution. ” La. R.S. 9:1725(2). Income that is
unallocated to an income beneficiary may ultimately become principal. See La. R.S.
9:1961. Finally, if the Code is silent, “resort shall be had to the Civil Code or other
laws, but neither the Civil Code nor any other law shall be invoked to defeat a
disposition sanctioned expressly or impliedly by [the Trust Code].” La. R.S. 9:1724
The significant – and perhaps obvious – difference between a principal and
income beneficiary is that only the income beneficiary is entitled to income of the

13 Such factors, not relevant to th e present dispute , include necessity and reasonableness of the
allowance, solvency of the estate, and procedures the requesting party must follow. La. C.C.P. art.
3321.

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property held in trust. In each of the Trust Instruments, Decedent names the
Surviving Spouse as the sole income beneficiary of the relevant estate property and
not only expressly directs the trustee to distribute net income to her, alone, but also
further prohibits distribution of income from the trust property to any other person.
The Trust Instruments thus consistently provide that the Forced Heirs will receive
no property of the estate held in the relevant trusts – nor income therefrom – upon
the termination of the succession administration. In fact, not only do the Forced
Heirs have no right to receive or use the property of Decedent’s estate held in trust
upon the termination of the succession administration, but they personally may never
be due funds or property from the estate held in these trusts (i.e., if they predecease
the Surviving Spouse). See La. R.S. 9:1841(3) (the term of the trust may survive the
life of the forced heir where the surviving spouse is the income beneficiary); see also
La. R.S. 9:1841(4) (“The principal shall be delivered to the forced heir or his heirs,
legatees, or assignees free of trust, upon the termination of the portion of th e trust
that affects the legitime.”) (emphasis added).
It is thus clear that, i rrespective of which of Decedent’s wills is ultimately
found applicable, the Forced Heirs are not “eventually due,” upon the termination of
the succession administration, cash held by the estate and/or estate property from
which cash may be made available for the Forced Heirs’ benefit. Since the purpose
of La. C.C.P. art. 3321 is to provide an advance on amounts due upon the termination
of the administration of a succession, we find the Forced Heirs are not entitled to an
interim allowance relative to their rights under the Trust Instruments.
In so holding we note that if we adopted the dissent’s interpretation of La.
C.C.P. art. 3321 that would entitle the Forced Heirs to an allowance because of the
rights to estate property they will obtain upon the termination of the trust , such
interpretation would arbitrarily entitle the Forced Heirs to receive funds during
administration of the succession to which they would otherwise not be entitled to

14

receive upon the termination of the succession administration. The apparent purpose
of the interim allowance provided by La. C.C.P. art. 3321 – i.e., to permit an advance
during the administration of the estate, as required, on amounts a surviving spouse,
heir, or legatee will receive there after – would not be met by such incongruous
rights.14 We therefore decline to find that the terms “eventually due” include the
Forced Heirs’ principal interests in the trusts even though they may ultimately obtain
full ownership of the property of Decedent’s estate upon termination of the trusts.
We note that, for similar reasons, a narrow interpretation of “amount
eventually due” limiting interim allowances to situations where an heir, legatee, or
surviving spouse will receive full ownership of estate property upon the termination
of the succession would unreasonably restrain the purpose of La. C.C.P. art. 3321.
Although we hold that Decedent’s dispositions granting the Forced Heirs’ principal
interests in the trusts do not entitle the Forced Heirs to receive an interim allowance
under La. C.C.P. art. 3321, we need not and do not conclude a party whose interest
in an estate is burdened by a trust (e.g., a surviving spouse usufructuary or surviving
spouse income beneficiary) is prohibited from receiving an interim allowance if they
are due, upon the termination of the succession administration, cash and/or to
property from which cash may be made available.
It is relevant, then, whether the Trust Code requires a trustee to distribute
HEMS payments from net income of the trust to a forced heir principal beneficiary
whose legitime is placed in trust, as argued by the Forced Heirs . The Forced Heirs
appear to acknowledge that their rights under the Trust Instruments do not entitle

14 This contradiction would similarly arise in a number of situations, including, inter alia, (1) where
the settlor has created a testamentary trust with different persons named as income and principal
beneficiaries outside of forced heirship, (2) any succession involving a surviving spouse
usufructuary, and (3) where a testator-settlor has limited the legatee’s right to income in the trust.
This incongruity would further generate conflict related to the duration of the administration; if
the Forced Heirs were granted an interim allowance in this case, for example, a longer
administration would create a financial benefit and windfall to the Forced Heirs by allowing them
access to funds they would not receive otherwise.

15

them to an interim allowance under La. C.C.P. art. 3321. They argue instead only
that the Trust Code “constrains” Decedent testator’s ability to direct that all net
income from the trusts be allocated to the Surviving Spouse and not the Forced Heirs.
Specifically, they rely on the Trust Code requirement that a trustee “shall” distribute
sufficient HEMS payments to them, as forced heirs, under the code’s rules relative
to placing a legitime in trust. See La. R.S. 9:1841(1). The argument follows that if
the Trust Code mandates that the Forced Heirs receive HEMS payments upon the
termination of the succession administration, they may also receive an allowance
within such amounts during the succession administration.
In determining whether La. R.S. 9:1841(1) requires derogating from the
dispositions in the Trust Instruments, we are mindful of certain applicable rules of
statutory construction. First, when a law is clear and unambiguous and its
application does not lead to absurd consequences, the law shall be applied as written.
La. C.C. art. 9. Further, the legislature is presumed to act with deliberation and to
enact each statute or article in light of the preceding law involving the same subject
matter. La. R.S. 24:177(C). “Under our long-standing rules of statutory construction,
where it is possible, courts have a duty in the interpretation of a statute to adopt a
construction which harmonizes and reconciles it with other provisions dealing with
the same subject matter.” Holly & Smith Architects, Inc. v. St. Helena Congregate
Facility, Inc. , 2006 -0582, p. 10 (La. 11/29/06), 943 So. 2d 1 037, 1045 , quoting
Louisiana Mun. Ass’n v. State, 2004-0227 (La. 1/19/05), 893 So. 2d 809, 837. And
with respect to provisions of the Trust Code, in particular, courts are instructed to
apply a liberal construction of the code in favor of freedom of the settlor’s
disposition. La. R.S. 9:1724 (“The provisions of this Code shall be accorded a liberal
construction in favor of freedom of disposition.”) (emphasis added).
Relevant here, Louisiana Revised Statute 9:1841 sets forth the general
requirements of placing a legitime in trust and provides:

16

The legitime or any portion thereof may be placed in trust provided:
(1) The trustee after taking into account all of the other income and
support to be received by the forced heir during the year shall distribute
to the forced heir, or to the legal guardian of the forced heir, funds
from the net income in trust sufficient for the health, maintenance,
support, and education of the forced heir.
(2) The forced heir’ s interest is subject to no charges or conditions
except as provided in R.S. 9:1843, 1844 , 1891 through 1906 and
Subpart B of Part III of this Chapter.
(3) Except as permitted by R.S. 9:1844, the term of the trust, as it affects
the legitime, does not exceed the life of the forced heir; and
(4) The principa l shall be delivered to the forced heir or his heirs,
legatees, or assignees free of trust, upon the termination of the portion
of the trust that affects the legitime.
(Emphasis added.) Referenced in La. R.S. 9:1841(2) as a permissible charge or
condition on the forced heirs’ interest, La. R.S. 9:1844 provides:
The legitime in trust may be burdened with an income interest or with
a usufruct in favor of a surviving spouse to the same extent and for the
same term that a usufruct of the same property could be stipulated in
favor of the same person for a like period.

(Emphasis added.) Thus incorporated by La. R.S. 9:1844, Louisiana Civil Code
article 1499 provides:
The decedent may grant a usufruct to the surviving spouse over all or
part of his property, including the forced portion, and may grant the
usufructuary the power to dispose of nonconsumables as provided in
the law of usufruct. The usufruct shall be for life unless expressly
designated for a shorter period, and shall not require security except as
expressly declared by the decedent or as permitted when the legitime is
affected.
A usufruct over the legitime in favor of the surviving spouse is a
permissible burden that does not impinge upon the legitime, whether it
affects community property or separate property, whether it is for life
or a shorter period, whether or not the forced heir is a descendant of the
surviving spouse, and whether or not the usufructuary has the power to
dispose of nonconsumables.
See also La. C.C. art. 1496 (“No charges, conditions, or burdens may be imposed on
the legitime except those expressly authorized by law, such as a usufruct in favor of
a surviving spouse or the placing of the legitime in trust.”).

17

In sum, Section 1841 of the Trust Code permits a legitime to be placed in trust
if four requirements are met, including the requirement set forth in La. R.S.
9:1841(1) that the trustee distribute sufficient HEMS payments to a forced heir from
the net income of the trust. Subsection (2) of 1841 then provides that the legitime in
trust cannot be subject to any charges or conditions except as provided in La. R.S.
9:1844. In turn, La. R.S. 9:1844 not only specifically recognizes that the disposition
of an income interest in trust to a surviving spouse as a permissible burden on a
legitime but also expressly permits such designation to burden the legitime “to the
same extent” that a testator may burden a legitime with a usufruct in favor of his
surviving spouse. Significantly, no provision of law requires distribution of HEMS
payments to a forced heir where a surviving spouse is granted a usufruct over the
legitime; instead, the surviving spouse usufruct burdens the legitime by providing
no income or other right to benefit therefrom to a forced heir naked owner . See
Edward F. Martin, Louisiana’s Law of Trusts 25 Years After Adoption of the Trust
Code, 50 L
A. L. REV. 501, 521 (1990) (“If the surviving spouse has a usufruct or
income interest over the forced portion, the spouse rather than the forced heir is
entitled to income for the duration of the spouse’s interest.”).
The parties dispute the extent to which subsections (1) and (2) of La. R.S.
9:1841 may be harmonized. More specifically, the right of a trustee to make his or
her surviving spouse the income beneficiary and burden the legitime by providing
no income to the forced heir , see La. R.S. 9:1841(2) and La. R.S. 9:1844 , must be
reconciled with the proviso that a trustee shall distribute net income to the forced
heirs for sufficient HEMS payments, see La. R.S. 9:1841(1). Reading these
provisions in pari materia, we conclude that the requirement that a tr ustee make
HEMS payments set forth in La. R.S. 9:1841(1) does not apply where, as here, the
decedent has burdened the legitime in trust with a surviving spouse income interest
pursuant to La. R.S. 9:1841(2) and La. R.S. 9:1844. See Read v. U.S. ex rel. Dep’t

18

of Treasury , 169 F.3d 243, 252 -53, n. 11 (5th Cir. 1999 ) ( referencing a trust
instrument that provided distribution of income to the surviving spouse , alone,
during her lifetime as being in accordance with La. R.S. 9:1841).
Our finding that the Forced Heirs are not entitled to HEMS payments under
La. R.S. 9:1841(1) is grounded in the principles of statutory analysis referenced
above. P ermitting a surviving spouse to burden the legitime in trust “to the same
extent” as a usufruct may burden the legitime does not lead to absurd consequences.
La. C.C. art. 9. In fact, any contrary interpretation would lead to incongruous results
by granting a forced heir greater rights to income when a testator leaves the legitime
in trust with an income interest to the surviving spouse , as compared to when a
testator leaves the legitime to the forced heir in naked ownership subject to a usufruct
to the surviving spouse. Such disparate treatment would run afoul of La. R.S.
9:1844’s clear directive to treat the surviving spouse income interest and a surviving
spouse usufruct the “same” and would encourage testators to bequeath their property
free from trust and by the laws of usufruct and naked ownership in spite of the Trust
Code’s express directive that it be construed liberally in favor of a testator’s
disposition. La. R.S. 9:1724 . Nor does our reading deprive La. R.S. 9:1841(1) and
the protections granted therein of meaning. In cases where a testator is not survived
by his or her spouse and/or does not designate the surviving spouse as income
beneficiary or usufructuary, La. R.S. 9:1841(1) forces a trustee to distribute net
income to a forced heir who is the income beneficiary sufficient for the forced heirs’
HEMS. In sum, our interpretation of the Trust Code properly gives meaning to the
text of each of these articles and favors freedom of Decedent’s dispositions.
Even assuming, arguendo, that the Trust Code is ambiguous, our
interpretation is further supported by the historical developments in this area of the
law. Since its inception in 1844 to modern day, the surviving spouse usufruct has
expanded to account for the desire of testators to protect their spouses financially

19

throughout the life of the survivor. In many ways, a modern-day testator may choose
to elevate the rights of his or her surviving spouse over the rights of his or her forced
heir. E.g., 1976 La . Acts No . 227 (permitting testator to grant surviving spouse
usufruct over family home); 1981 La. Acts. No. 911 (permitting usufruct to extend
over property inherited by all of decedent’s children, even if not children of the
surviving spouse); 1996 L a. Acts No. 77 (re defining forced heirs to only include
young and disabled children and permitting usufruct over the entire forced portion,
both community and separate property, and permitting surviving spouse usufruct the
power to dispose of nonconsumables without the consent of forced heirs). This
movement in favor of freedom of testator disposition has been repeatedly noted by
scholars and other authorities in the law of successions. See A. N. Yiannopoulos, Of
Legal Usufruct, the Surviving Spouse, and Article 890 of the Louisiana Civil Code:
Heyday for Estate Planning , 49 L A. L. REV. 803, 804 (1989) (noting the multiple
changes to the laws governing usufructs and forced heirship and observing that “[b]y
the mid-seventies . . . a movement against the institution of forced heirship gained
strength.”), citing Max Nathan, Jr., Forced Heirship in Louisiana —An Assault on
the Citadel: A Rejection of Forced Heirship, 52 T
UL. L. REV. 5 (1977) (“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.”) ; Kathryn
Venturatos Lorio, The Changing Concept of Family and Its Effect on Louisiana
Succession Law, 63 LA. L. REV. 1161, 1178 (2003) (providing a historical review of
the changes in Louisiana law on forced heirship and rights of the surviving spouse
usufruct and opining: “The law in Louisiana seemed to become, not necessarily what
was best for society as a whole, but what was desired by each individual testator. . .
It is not surprising that spouses, while happily married and with a tax structure
encouraging it as well, expressed a desire to leave their entire estates to their
surviving spouses, even when children also survived the dece dent.”). Consistent

20

with these observations, we find the Trust Code permits Decedent to elevate the
rights of the Surviving Spouse over the rights of the Forced Heirs with respect to
their legitime, just as he may have done were he to have disposed of his estate free
of trust.
In sum, because a forced heir whose legitime is burdened by a usufruct in
favor of the decedent’s surviving spouse is a permissible burden and does not require
HEMS payments be made to the forced heir, Decedent’s disposition of his estate in
trust and granting of an income interest to his surviving spouse, alone, is likewise a
permissible burden on the Forced Heirs’ legitime pursuant to La. R.S. 9:1841(2) and
La. R.S. 9:1844. We reject an interpretation of La. R.S. 9:1841(1) that would require
an exception to this permissible burden on a forced heir’s legitime placed in trust. In
so finding, we construe the Trust Code ’s clear and express directive – that the
surviving spouse income interest may burden the legitime “to the same extent” as a
surviving spouse usufruct – liberally in favor of freedom of Decedent’s will, as
instructed by the Legislature. La. R.S. 9:1724.
CONCLUSION
Decedent left the Forced Heirs more than the law requires, bequeath ing to
them equal shares of the estate held in the applicable trusts rather than the one-half
required by law.15 At the same time, he apparently intended to protect his surviving
spouse by leaving her the income interest to the applicable trusts for her natural life.
Pursuant to whichever of Decedent’s wills is determined to apply, the Forced Heirs
are owed nothing and will receive nothing until the Surviving Spouse’s death, as
permitted by La. R.S. 9:1841(2) and La. R.S. 9:1844. Where the Forced Heirs are
not entitled to any distribution from the applicable trusts when the administration of

15 Again, the Forced Heirs are additionally entitled to receive property pursuant to Decedent’s
specific bequests and pursuant to the partial judgments of possession previously entered into by
the district court. See Note 4, supra.

21

Decedent’s succession ends, they are not entitled to an advance during the
administration of the succession on their interest in the estate by way of an interim
allowance under La. C.C.P. art. 3321.
For the reasons set forth herein, we find the Forced Heirs cannot receive an
interim allowance during the administration of Decedent’s succession because they
are not due, upon the termination of the administration, cash and/or property from
which cash may be made available. We thus affirm the decision of the court of
appeal and remand the matter to the district court for further proceedings.
AFFIRMED.

SUPREME COURT OF LOUISIANA
No. 2021-CC-01521
SUCCESSION OF RAYMOND JOHN BRANDT
On Writ of Certiorari to the Court of Appeal,
Fifth Circuit, Parish of Jefferson
HUGHES, J., dissenting.
I respectfully dissent from the ruling of the majority, holding that when forced
heirs "are not entitled to any distribution from the applicable trusts when the
administration of Decedent's succession ends, they are not entitled to an advance
during the administration of the succession on their interest in the estate by way of
an interim allowance under La. C.C.P. art. 3321." (Slip op. at p. 21.)
The majority analysis is based on its conclusion that "the Forced Heirs are not
entitled to an interim allowance under La. C.C.P. art. 3321 per any of Decedent's
wills because the Trust Instruments, which govern the estate property post­
succession, designate the Surviving Spouse as the 'sole' income beneficiary and
expressly prohibit distribution of income to any other person, including the Forced
Heirs, until the termination of the trusts." (Slip op. at p. 6 (emphasis added).)1
1 The majority places emphasis on the fact that the 'Trust Instruments" name the surviving spouse
as the sole income beneficiary of the assets that the decedent's will(s) directs are to be placed in
the trust (though also noting that the forced heirs as the named principal beneficiaries "may
ultimately obtain full ownership of the property of Decedent's estate upon termination of the
trusts" (Slip op. at p. 14)) and instruct the trustee to distribute trust income only to the surviving
spouse/income beneficiary, prohibiting distribution of trust income to any other person. Thus, the
majority concludes that "the Forced Heirs will receive no property of the estate held in the rdevant
trusts - nor income therefrom - upon the termination of the succession administration." (Slip op.
at p. 13.) The majority continues, stating that "the Forced Heirs have no right to receive or use the
property of Decedent's estate held in trust upon the termination of the succession administration,
but they personally may never be due funds or property from the estate held in these trusts (i.e., if
they predecease the Surviving Spouse)." (Slip op. at p. 13.) Both of these conclusions are
inaccurate. The forced heir,; will eventually receive property upon termination of the succession
administration, but only when the testamentary trust or a legal usufruct in favor of the surviving
spouse (depending on whether and/or which of the decedent's wills is found valid) terminates.
And, the probability that one or both of the forced heirs will live beyond the decedent's surviving
spouse is more likely than not since she is their natural grandmother (and adoptive mother);
notwithstanding, it is the fact that the forced heirs are entitled to the ownership of the decedent's
estate, eventually, that is determinative of their interest, not whether they may or may not live long
enough to possess it.

S
UPREME COURT OF LOUISIANA
No
. 2021-CC-01521
S
UCCESSION OF RAYMOND JOHN BRANDT
O
N WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH
CIRCUIT, PARISH OF JEFFERSON
G
enovese, J., dissents for the reasons assigned by Justice Hughes.