ARTICLE: Forced Heirship in Louisiana: In Defense of Forced Heirship Skip over navigation
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Copyright (c) 1977 Tulane University
Tulane Law Review

ARTICLE: Forced Heirship in Louisiana: In Defense of Forced Heirship

December, 1977

Tulane Law Review

52 Tul. L. Rev. 20


Thomas B. Lemann*



An institution that has been part of our law since time immemorial hardly needs defense, but it may be well to review briefly our heritage of forced heirship before considering some of the current criticisms. The early French commentator Louet, 1 writing in 1693, claimed to find scriptural authority for forced heirship in the books of Genesis 2 and Numbers. The latter authority states: $ y [ILLEGIBLE WORDS], or, "Thou shalt cause the inheritance of their father to pass unto them." 3 In Roman law the Falcidian portion (abolished in article 1616 of the Louisiana Civil Code) 4 assured a forced share to descendants, 5 and the doctrine of querela inofficiosi testamenti ordained the legitime, originally for descendents and later for other members of the testator's family. 6 Some writers view the querela as civil, 7 others characterize it as praetorian, 8 but in any event by the time of Justinian the institution of the legitime was well known in Roman law. 9 In the regions governed by customary law and the barbarian codes, the doctrine of the reserved portion likewise protected heirs, though as Planiol observed: "The ideology of the reserve was . . . quite different from the Roman legitime. It was not based on moral principle of mutual duties between direct relatives, but on a political notion of preservation of family estates." 10

The Burgundian Code, the law of Gundobad, who reigned from 474 to 516, 11 provided a forced portion for ...
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