book3_2 – Louisiana Civil Code

Civil Code

Book III. Of the Different Modes of Acquiring the Ownership of Things

Title V. Obligations Arising Without Agreement

Chapter 1. Management of Affairs (Negotiorum Gestio)

Art. 2292. Management of affairs;  definition

There is a management of affairs when a person, the manager, acts without authority to protect the interests of another, the owner, in the reasonable belief that the owner would approve of the action if made aware of the circumstances.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2293. Application of rules governing mandate

A management of affairs is subject to the rules of mandate to the extent those rules are compatible with management of affairs.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2294. Duties of the manager;  notice to the owner

The manager is bound, when the circumstances so warrant, to give notice to the owner that he has undertaken the management and to wait for the directions of the owner, unless there is immediate danger.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2295. Duties of the manager;  liability for loss

The manager must exercise the care of a prudent administrator and is answerable for any loss that results from his failure to do so.  The court, considering the circumstances, may reduce the amount due the owner on account of the manager's failure to act as a prudent administrator.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2296. Capacity

An incompetent person or a person of limited legal capacity may be the owner of an affair, but he may not be a manager.  When such a person manages the affairs of another, the rights and duties of the parties are governed by the law of enrichment without cause or the law of delictual obligations.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2297. Obligations of the owner

The owner whose affair has been managed is bound to fulfill the obligations that the manager has undertaken as a prudent administrator and to reimburse the manager for all necessary and useful expenses.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Chapter 2. Enrichment Without Cause

Section 1. General Principles

Art. 2298. Enrichment without cause;  compensation

A person who has been enriched without cause at the expense of another person is bound to compensate that person.  The term "without cause" is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law.  The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.

The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Section 2. Payment of A Thing Not Owed

Art. 2299. Obligation to restore

A person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2300. Obligation that does not exist

A thing is not owed when it is paid or delivered for the discharge of an obligation that does not exist.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2301. Obligation under suspensive condition

A thing is not owed when it is paid or delivered for discharge of an obligation that is subject to a suspensive condition.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2302. Payment of the debt of another person

A person who paid the debt of another person in the erroneous belief that he was himself the obligor may reclaim the payment from the obligee.  The payment may not be reclaimed to the extent that the obligee, because of the payment, disposed of the instrument or released the securities relating to the claim.  In such a case, the person who made the payment has a recourse against the true obligor.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2303. Liability of the person receiving payment

A person who in bad faith received a payment or a thing not owed to him is bound to restore it with its fruits and products.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2304. Restoration of a thing or its value

When the thing not owed is an immovable or a corporeal movable, the person who received it is bound to restore the thing itself, if it exists.

If the thing has been destroyed, damaged, or cannot be returned, a person who received the thing in good faith is bound to restore its value if the loss was caused by his fault.  A person who received the thing in bad faith is bound to restore its value even if the loss was not caused by his fault.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Art. 2305. Liability when the thing is alienated

A person who in good faith alienated a thing not owed to him is only bound to restore whatever he obtained from the alienation.  If he received the thing in bad faith, he owes, in addition, damages to the person to whom restoration is due.

Acts 1995, No. 1041, §1, eff. Jan. 1, 1996.

Chapter 3. Of Offenses and Quasi Offenses

Art. 2315. Liability for acts causing damages

A.  Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

B.  Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease.  Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.

Amended by Acts 1884, No. 71; Acts 1908, No. 120, §1; Acts 1918, No. 159, §1; Acts 1932, No. 159, §1; Acts 1948, No. 333, §1; Acts 1960, No. 30, §1; Acts 1982, No. 202, §1; Acts 1984, No. 397, §1; Acts 1986, No. 211, §1; Acts 1999, No. 989, §1, eff. July 9, 1999; Acts 2001, No. 478, §1.

Art. 2315.1. Survival action

A.  If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:

(1)  The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2)  The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

(3)  The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4)  The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

B.  In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased's succession representative in the absence of any class of beneficiary set out in Paragraph A.

C.  The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D.  As used in this Article, the words "child", "brother", "sister", "father", "mother", "grandfather", and "grandmother" include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

E.  For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

Acts 1986, No. 211, §2; Acts 1987, No. 675, §1; Acts 1997, No. 1317, §1, eff. July 15, 1997.

 

Art. 2315.2. Wrongful death action

A.  If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:

(1)  The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2)  The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

(3)  The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4)  The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

B.  The right of action granted by this Article prescribes one year from the death of the deceased.

C.  The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D.  As used in this Article, the words "child", "brother", "sister", "father", "mother", "grandfather", and "grandmother" include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

E.  For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

Acts 1986, No. 211, §2; Acts 1997, No. 1317, §1, eff. July 15, 1997.

Art. 2315.3. Additional damages;  child pornography

In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton and reckless disregard for the rights and safety of the person through an  act of pornography involving juveniles, as defined by R.S. 14:81.1, regardless of whether the defendant was prosecuted for his acts.

Acts 2009, No. 382, §1.

Art. 2315.4. Additional damages;  intoxicated defendant

In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

Acts 1984, No. 511, §1.

Art. 2315.5. Wrongful death and survival action;  exception

Notwithstanding any other provision of law to the contrary, the surviving spouse, parent, or child of a deceased, who has been convicted of a crime involving the intentional killing or attempted killing of the deceased, or, if not convicted, who has been judicially determined to have participated in the intentional, unjustified killing or attempted killing of the deceased, shall not be entitled to any damages or proceeds in a survival action or an action for wrongful death of the deceased, or to any proceeds distributed in settlement of any such cause of action.  In such case, the other child or children of the deceased, or if the deceased left no other child surviving, the other survivors enumerated in the applicable provisions of Articles 2315.1(A) and 2315.2(A), in order of preference stated, may bring a survival action against such surviving spouse, parent, or child, or an action against such surviving spouse, parent, or child for the wrongful death of the deceased.

An executive pardon shall not restore the surviving spouse's, parent's, or child's right to any damages or proceeds in a survival action or an action for wrongful death of the deceased.

Acts 1987, No. 690, §1; Acts 1991, No. 180, §1.

Art. 2315.6. Liability for damages caused by injury to another

A.  The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person's injury:

(1)  The spouse, child or children, and grandchild or grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person.

(2)  The father and mother of the injured person, or either of them.

(3)  The brothers and sisters of the injured person or any of them.

(4)  The grandfather and grandmother of the injured person, or either of them.

B.  To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant's position to suffer serious mental anguish or emotional distress from the experience, and the claimant's mental anguish or emotional distress must be severe, debilitating, and foreseeable.

Damages suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article.

Acts 1991, No. 782, §1.

Art. 2315.7. Liability for damages caused by criminal sexual activity occurring during childhood

In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton and reckless disregard for the rights and safety of the person through criminal sexual activity which occurred when the victim was seventeen years old or younger, regardless of whether the defendant was prosecuted for his or her acts.  The provisions of this Article shall be applicable only to the perpetrator of the criminal sexual activity.

Acts 1993, No. 831, §1, eff. June 22, 1993.

Art. 2315.8. Liability for damages caused by domestic abuse

     A. In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton and reckless disregard for the rights and safety of a family or household member, as defined in R.S. 46:2132, through acts of domestic abuse resulting in serious bodily injury or severe emotional and mental distress, regardless of whether the defendant was prosecuted for his or her acts.

            B. Upon motion of the defendant or upon its own motion, if the court determines that an action seeking damages under this Article is frivolous or fraudulent, the court shall award costs of court, reasonable attorney fees, and any other related costs to the defendant and any other sanctions and relief requested pursuant to Code of Civil Procedure Article 863.

Acts 2014, No. 315, §1; Acts 2018, No. 264, §1.

Art. 2315.9. Liability for damages caused by acts of terror

A. In addition to general and special damages, a prevailing plaintiff shall also be awarded court costs and reasonable attorney fees in the appropriate district or appellate court upon proof that the injuries on which the action is based were caused by an act of terror or terrorism resulting in injury to the person or damage to the person's property, regardless of whether the defendant was prosecuted for his acts.

B. The rights and remedies provided by this Article are in addition to any other rights and remedies provided by law.

C. As used in this Article, the terms shall be defined as follows:

(1) "Act of terror" or "terrorism" means the commission of any of the acts occurring primarily in this state and as enumerated in this Subparagraph, when the offender has the intent to intimidate or coerce the civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by intimidation or coercion:

(a) Intentional killing of a human being.

 (b) Intentional infliction of serious bodily injury upon a human being.

(c) Kidnapping of a human being.

(d) Aggravated arson upon any structure, watercraft, or movable.

(e) Aggravated criminal damage to property.

(2) "Terrorist" means a person who knowingly does any of the following:

(a) Commits an act of terror.

(b) Acts as an accessory before or after the fact, aids or abets, solicits, or conspires to commit an act of terror.

(c) Lends material support to an act of terror.

D. Upon motion of the defendant or upon its own motion, if the court determines that any action alleging an act of terror is frivolous or fraudulent, the court shall award costs of court, reasonable attorney fees, and any other related costs to the defendant and any other sanctions and relief requested pursuant to Code of Civil Procedure Article 863.

E. An action under the provisions of this Article shall be subject to a liberative prescriptive period of two years.

Acts 2015, No. 337, §1.

Art. 2315.10. Liability for death caused by hazing;  additional damages

 In addition to general and special damages, exemplary damages may be awarded upon proof that the death on which the action is based was caused by a wanton and reckless disregard for the rights and safety of the victim through an act of hazing, as defined by R.S. 17:1801, regardless of whether the defendant was prosecuted for his acts.

Acts 2018, No. 481, §1, eff. May 25, 2018.

Art. 2316. Negligence, imprudence or want of skill

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Art. 2317. Acts of others and of things in custody

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.  This, however, is to be understood with the following modifications.

Art. 2317.1. Damage caused by ruin, vice, or defect in things

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.  Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Acts 1996, 1st Ex. Sess., No. 1, §1, eff. April 16, 1996.

Art. 2318. Acts of a minor

The father and the mother are responsible for the damage occasioned by their minor child, who resides with them or who has been placed by them under the care of other persons, reserving to them recourse against those persons.  However, the father and mother are not responsible for the damage occasioned by their minor child who has been emancipated by marriage, by judgment of full emancipation, or by judgment of limited emancipation that expressly relieves the parents of liability for damages occasioned by their minor child.

The same responsibility attaches to the tutors of minors.

Acts 1984, No. 578, §1; Acts 2008, No. 786, §1, eff. Jan. 1, 2009.

Art. 2319. Acts of interdicts

Neither a curator nor an undercurator is personally responsible to a third person for a delictual obligation of the interdict in his charge solely by reason of his office.

Acts 2000, 1st Ex. Sess., No. 25, §2, eff. July 1, 2001.

Art. 2320. Acts of servants, students or apprentices

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.

In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.

The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title:  Of quasi-contracts, and of offenses and quasi-offenses.

Art. 2320. Acts of servants, students or apprentices

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.

In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.

The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title:  Of quasi-contracts, and of offenses and quasi-offenses.

Art. 2322. Damage caused by ruin of building

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original* construction.  However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.  Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Acts 1996, 1st Ex. Sess., No. 1, §1, eff. April 16, 1996.

*"Original" has no counterpart in French text.

Art. 2322.1. Users of blood or tissue;  a medical service

A. The screening, procurement, processing, distribution, transfusion, or medical use of human blood and blood components of any kind and the transplantation or medical use of any human organ, human tissue, or approved animal tissue by physicians, dentists, hospitals, hospital blood banks, and nonprofit community blood banks is declared to be, for all purposes whatsoever, the rendition of a medical service by each and every physician, dentist, hospital, hospital blood bank, and nonprofit community blood bank participating therein, and shall not be construed to be and is declared not to be a sale. Strict liability and warranties of any kind without negligence shall not be applicable to the aforementioned who provide these medical services.

B. In any action based in whole or in part on the use of blood or tissue by a healthcare provider, to which the provisions of Paragraph A do not apply, the plaintiff shall have the burden of proving all elements of his claim, including a defect in the thing sold and causation of his injuries by the defect, by a preponderance of the evidence, unaided by any presumption.

C. The provisions of Paragraphs A and B are procedural and shall apply to all alleged causes of action or other act, omission, or neglect without regard to the date when the alleged cause of action or other act, omission, or neglect occurred.

D. As used in this Article:

(1) "Healthcare provider" includes all individuals and entities listed in R.S. 9:2797, this Article, R.S. 40:1237.1 and R.S. 40:1231.1 whether or not enrolled with the Patient's Compensation Fund.

(2) "The use of blood or tissue" means the screening, procurement, processing, distribution, transfusion, or any medical use of human blood, blood products, and blood components of any kind and the transplantation or medical use of any human organ, human or approved animal tissue, and tissue products or tissue components by any healthcare provider.

Added by Acts 1981, No. 611, §1; Acts 1990, No. 1091, §1; Acts 1999, No. 539, §2, eff. June 30, 1999.

Art. 2323. Comparative fault

A.  In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.  If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

B.  The provisions of Paragraph A shall apply to any claim for  recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

C.  Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.

Amended by Acts 1979, No. 431, §1; Acts 1996, 1st Ex. Sess., No. 3, §1, eff. April 16, 1996.

Art. 2324. Liability as solidary or joint and divisible obligation

A.  He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

B.  If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint  and divisible obligation.  A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

C.  Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

Amended by Acts 1979, No. 431, §1; Acts 1987, No. 373, §1; Acts 1988, No. 430, §1; Acts 1996, 1st Ex. Sess., No. 3, §1, eff. April 16, 1996.

Art. 2324.1. Damages;  discretion of judge or jury

In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.

Acts 1984, No. 331, §3, eff. Jan. 1, 1985.

Art. 2324.2. Reduction of recovery

A.  When the recovery of damages by a person suffering injury, death, or loss is reduced in some proportion by application of Article 2323 or 2324 and there is a legal or conventional subrogation, then the subrogee's recovery shall be reduced in the same proportion as the subrogor's recovery.

B.  Nothing herein precludes such persons and legal or conventional subrogees from agreeing to a settlement which would incorporate a different method or proportion of subrogee recovery for amounts paid by the legal or conventional subrogee under the Louisiana Worker's Compensation Act, R.S. 23:1021, et seq.

Acts 1989, No. 771, §1, eff. July 9, 1989.

Title VI. Matrimonial Regimes

Chapter 1. General Principles

Art. 2325. Matrimonial regime

A matrimonial regime is a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons.

Acts 1979, No. 709, §1.

Art. 2326. Kinds of matrimonial regimes

A matrimonial regime may be legal, contractual, or partly legal and partly contractual.

Acts 1979, No. 709, §1.

Art. 2327. Legal regime

The legal regime is the community of acquets and gains established in Chapter 2 of this Title.

Acts 1979, No. 709, §1.

Art. 2328. Contractual regime;  matrimonial agreement

A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime.  Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law.  The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect.

Acts 1979, No. 709, §1.

Art. 2329. Exclusion or modification of matrimonial regime

Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.

Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules.  They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.

During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement without court approval.

Acts 1979, No. 709, §1.  Amended by Acts 1980, No. 565, §1.

Art. 2330. Limits of contractual freedom

Spouses may not by agreement before or during marriage, renounce or alter the marital portion or the established order of succession.  Nor may the spouses limit with respect to third persons the right that one spouse alone has under the legal regime to obligate the community or to alienate, encumber, or lease community property.

Acts 1979, No. 709, §1.

Art. 2331. Form of matrimonial agreement

A matrimonial agreement may be executed by the spouses before or during marriage.  It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.

Acts 1979, No. 709, §1.

Art. 2332. Effect toward third persons

A matrimonial agreement, or a judgment establishing a regime of separation of property is effective toward third persons as to immovable property, when filed for registry in the conveyance records of the parish in which the property is situated and as to movables when filed for registry in the parish or parishes in which the spouses are domiciled.

Acts 1979, No. 709, §1.

 

Art. 2333. Minors

A minor under the age of sixteen may not enter into a matrimonial agreement. A minor sixteen or seventeen years of age may not enter into a matrimonial agreement without judicial authorization and the written concurrence of his father and mother, or of the parent having his legal custody, or of the tutor of his person.

Acts 1979, No. 709, §1; Acts 2019, No. 401, §1.

Chapter 2. The Legal Regime of Community of Acquets and Gains

Section 1. General Dispositions

Art. 2334. Persons;  scope of application of the legal regime

The legal regime of community of acquets and gains applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.

Acts 1979, No. 709, §1.

Art. 2335. Classification of property

Property of married persons is either community or separate, except as provided in Article 2341.1.

Acts 1979, No. 709, §1; Acts 1991, No. 329, §1.

Art. 2336. Ownership of community property

Each spouse owns a present undivided one-half interest in the community property.  Nevertheless, neither the community nor things of the community may be judicially partitioned prior to the termination of the regime.

During the existence of the community property regime, the spouses may, without court approval, voluntarily partition the community property in whole or in part. In such a case, the things that each spouse acquires are separate property.  The partition is effective toward third persons when filed for registry in the manner provided by Article 2332.

Acts 1979, No. 709, §1.  Amended by Acts 1981, No. 921, §1; Acts 1982, No. 282, §1.

Art. 2337. Disposition of undivided interest

A spouse may not alienate, encumber, or lease to a third person his undivided interest in the community or in particular things of the community prior to the termination of the regime.

Acts 1979, No. 709, §1.

Art. 2338. Community property

The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

Acts 1979, No. 709, §1.

Art. 2339. Fruits and revenues of separate property

The natural and civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases are community property.  Nevertheless, a spouse may reserve them as his separate property as provided in this Article.

 A spouse may reserve them as his separate property by a declaration made in an authentic act or in an act under private signature duly acknowledged.  A copy of the declaration shall be provided to the other spouse prior to filing of the declaration.

As to the fruits and revenues of immovables, the declaration is effective when a copy is provided to the other spouse and the declaration is filed for registry in the conveyance records of the parish in which the immovable property is located.  As to fruits of movables, the declaration is effective when a copy is provided to the other spouse and the declaration is filed for registry in the conveyance records of the parish in which the declarant is domiciled.

Acts 1979, No. 709, §1; Amended by Acts 1980, No. 565, §2; Acts 2008, No. 855, §1.

Art. 2340. Presumption of community

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.

Acts 1979, No. 709, §1.

Art. 2341. Separate property

The separate property of a spouse is his exclusively.  It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.

Acts 1979, No. 709, §1; Amended by Acts 1981, No. 921, §1.

Art. 2341.1. Acquisition of undivided interests;  separate and community property

A.  A spouse's undivided interest in property otherwise classified as separate property under Article 2341 remains his separate property regardless of the acquisition of other undivided interests in the property during the existence of the legal regime, the source of improvements thereto, or by whom the property was managed, used, or enjoyed.

B.  In property in which an undivided interest is held as community property and an undivided interest is held as separate property, each spouse owns a present undivided one-half interest in that portion of the undivided interest which is community and a spouse owns a present undivided interest in that portion of the undivided interest which is separate.

Acts 1991, No. 329, §2.

Art. 2342. Declaration of acquisition of separate property

A.  A declaration in an act of acquisition that things are acquired with separate funds as the separate property of a spouse may be controverted by the other spouse unless he concurred in the act.  It may also be controverted by the forced heirs and the creditors of the spouses, despite the concurrence by the other spouse.

B.  Nevertheless, when there has been such a declaration, an alienation, encumbrance, or lease of the thing by onerous title, during the community regime or thereafter, may not be set aside on the ground of the falsity of the declaration.

C.(1)  The provision of this Article that prohibits setting aside an alienation, encumbrance, or lease on the ground of the falsity of the declaration of separate property is hereby made retroactive to any such alienation, encumbrance, or lease prior to July 21, 1982.

(2)  A person who has a right to set aside such transactions on the ground of the falsity of the declaration, which right is not prescribed or otherwise extinguished or barred upon July 21, 1982, and who is adversely affected by the provisions of this Article, shall have six months from July 21, 1982 to initiate proceedings to set aside such transactions or otherwise be forever barred from exercising such right or cause of action.  Nothing contained in this Article shall be construed to limit or prescribe any action or proceeding which may arise between spouses under the provisions of this Article.

Acts 1979, No. 709, §1.  Amended by Acts 1980, No. 565, §3; Acts 1982, No. 453, §1; Acts 1995, No. 433, §1.

Art. 2343. Donation by spouse of interest in community

The donation by a spouse to the other spouse of his undivided interest in a thing forming part of the community transforms that interest into separate property of the donee.  Unless otherwise provided in the act of donation, an equal interest of the donee is also transformed into separate property and the natural and civil fruits of the thing, and minerals produced from or attributed to the property given as well as bonuses, delay rentals, royalties, and shut-in payments arising from mineral leases, form part of the donee's separate property.

Acts 1979, No. 709, §1; Amended by Acts 1981, No. 921, §1.

Art. 2343.1. Transfer of separate property to the community

The transfer by a spouse to the other spouse of a thing forming part of his separate property, with the stipulation that it shall be part of the community, transforms the thing into community property.  As to both movables and immovables, a transfer by onerous title must be made in writing and a transfer by gratuitous title must be made by authentic act.

Added by Acts 1981, No. 921, §2.

Art. 2344. Offenses and quasi-offenses;  damages as community or separate property

Damages due to personal injuries sustained during the existence of the community by a spouse are separate property.

Nevertheless, the portion of the damages attributable to expenses incurred by the community as a result of the injury, or in compensation of the loss of community earnings, is community property.  If the community regime is terminated otherwise than by the death of the injured spouse, the portion of the damages attributable to the loss of earnings that would have accrued after termination of the community property regime is the separate property of the injured spouse.

Acts 1979, No. 709, §1.

Art. 2345. Satisfaction of obligation during community

A separate or community obligation may be satisfied during the community property regime from community property and from the separate property of the spouse who incurred the obligation.

Acts 1979, No. 709, §1.

Section 2. Management of Community Property

Art. 2346. Management of community property

Each spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law.

Acts 1979, No. 709, §1.

Art. 2347. Alienation of community property;  concurrence of other spouse

A.  The concurrence of both spouses is required for the alienation, encumbrance, or lease of community immovables, standing, cut, or fallen timber, furniture or furnishings while located in the family home, all or substantially all of the assets of a community enterprise, and movables issued or registered as provided by law in the names of the spouses jointly.

B.  The concurrence of both spouses is required to harvest community timber.

Acts 1979, No. 709, §1; Acts 2001, No. 558, §1.

Art. 2348. Renunciation of right to concur

A spouse may expressly renounce the right to concur in the alienation, encumbrance, or lease of a community immovable or some or all of the community immovables, or community immovables which may be acquired in the future, or all or substantially all of a community enterprise.  He also may renounce the right to participate in the management of a community enterprise.  The renunciation may be irrevocable for a stated term not to exceed three years.  Further, any renunciation of the right to concur in the alienation, encumbrance, or lease of a community immovable, or some or all of the community immovables or community immovables which may be acquired in the future, or all or substantially all of a community enterprise which was proper in form and effective under the law at the time it was made shall continue in effect for the stated term not to exceed three years or if there was no term stated, then until it is revoked.

A spouse may nonetheless reserve the right to concur in the alienation, encumbrance, or lease of specifically described community immovable property.

Acts 1979, No. 709, §1; Amended by Acts 1981, No. 132, §1; Acts 1984, No. 554, §1, eff. Jan. 1, 1985; Acts 1984, No. 622, §1, eff. Jan. 1, 1985.

{{NOTE:  SEE SECTION 2 OF ACTS 1984, NOS. 554 AND 622.}}

Art. 2349. Donation of community property;  concurrence of other spouse

The donation of community property to a third person requires the concurrence of the spouses, but a spouse acting alone may make a usual or customary gift of a value commensurate with the economic position of the spouses at the time of the donation.

Acts 1979, No. 709, §1.

Art. 2350. Alienation of movable assets of business

The spouse who is the sole manager of a community enterprise has the exclusive right to alienate, encumber, or lease its movables unless the movables are issued in the name of the other spouse or the concurrence of the other spouse is required by law.

A community enterprise is a business that is not a juridical person.

Acts 1979, No. 709, §1; Acts 2017, No. 197, §1.

Art. 2351. Alienation of registered movables

A spouse has the exclusive right to manage, alienate, encumber, or lease movables issued or registered in his name as provided by law.

Acts 1979, No. 709, §1.

Art. 2352. Management and disposition of partnership and limited liability company interest

A spouse who is a partner has the exclusive right to manage, alienate, encumber, or lease the partnership interest.

A spouse who is a member has the exclusive right to manage, alienate, encumber, or lease the limited liability company interest.

Acts 1979, No. 709, §1; Acts 1993, No. 475, §1, eff. June 9, 1993.

Art. 2353. Unauthorized alienation of community property

When the concurrence of the spouses is required by law, the alienation, encumbrance, or lease of community property by a spouse is relatively null unless the other spouse has renounced the right to concur.  Also, the alienation, encumbrance, or lease of the assets of a community enterprise by the non-manager spouse is a relative nullity.

Acts 1979, No. 709, §1.

Art. 2354. Liability for fraud or bad faith

A spouse is liable for any loss or damage caused by fraud or bad faith in the management of the community property.

Acts 1979, No. 709, §1.

Art. 2355. Judicial authorization to act without the consent of the other spouse

A spouse, in a summary proceeding, may be authorized by the court to act without the concurrence of the other spouse upon showing that such action is in the best interest of the family and that the other spouse arbitrarily refuses to concur or that concurrence may not be obtained due to the physical incapacity, mental incompetence, commitment, imprisonment, temporary absence of the other spouse, or because the other spouse is an absent person.

Acts 1979, No. 709, §1; Acts 1990, No. 989, §2, eff. Jan. 1, 1991.

Art. 2355.1. Judicial authorization to manage the community

When a spouse is an absent person, the other spouse, upon showing that such action is in the best interest of the family, may be authorized by the court in a summary proceeding to manage, alienate, encumber, or lease community property that the absent spouse has the exclusive right to manage, alienate, encumber, or lease.

Acts 1990, No. 989, §2, eff. Jan. 1, 1991.

Section 3. Termination of the Community

Art. 2356. Causes of termination

The legal regime of community property is terminated by the death or judgment of declaration of death of a spouse, declaration of the nullity of the marriage, judgment of divorce or separation of property, or matrimonial agreement that terminates the community.

Acts 1979, No. 709, §1; Acts 1990, No. 989, §2, eff. Jan. 1, 1991.

Art. 2357. Satisfaction of obligation after termination of regime

An obligation incurred by a spouse before or during the community property regime may be satisfied after termination of the regime from the property of the former community and from the separate property of the spouse who incurred the obligation.  The same rule applies to an obligation for attorney's fees and costs in an action for divorce incurred by a spouse between the date the petition for divorce was filed and the date of the judgment of divorce that terminates the community regime.

If a spouse disposes of property of the former community for a purpose other than the satisfaction of community obligations, he is liable for all obligations incurred by the other spouse up to the value of that community property.

A spouse may by written act assume responsibility for one-half of each community obligation incurred by the other spouse.  In such case, the assuming spouse may dispose of community property without incurring further responsibility for the obligations incurred by the other spouse.

Acts 1979, No. 709, §1; Acts 1990, No. 1009, §3, eff. Jan. 1, 1991.

Art. 2358. Claims for reimbursement between spouses

A spouse may have a claim against the other spouse for reimbursement in accordance with the following Articles.

A claim for reimbursement may be asserted only after termination of the community property regime, unless otherwise provided by law.

Acts 1979, No. 709, §1; Acts 1990, No. 991, §1; Acts 2009, No. 204, §1.

Art. 2358.1. Source of reimbursement

Reimbursement shall be made from the patrimony of the spouse who owes reimbursement.

Acts 1990, No. 991, §1.

Art. 2359. Obligations;  community or separate

An obligation incurred by a spouse may be either a community obligation or a separate obligation.

Acts 1979, No. 709, §1.

Art. 2360. Community obligation

An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.

Acts 1979, No. 709, §1.

 

Art. 2361. Obligations incurred during marriage;  presumption

Except as provided in Article 2363, all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations.

Acts 1979, No. 709, §1.

Art. 2362. Alimentary obligation

An alimentary obligation imposed by law on a spouse is deemed to be a community obligation.

Acts 1979, No. 709, §1.

2362.1. Obligation incurred in an action for divorce

A. An obligation incurred before the date of a judgment of divorce for attorney fees and costs in an action for divorce and in incidental actions is deemed to be a community obligation.

B. The obligation for attorney fees and costs incurred by the perpetrator of abuse or awarded against him in an action for divorce granted pursuant to Article 103(4) or (5) or in an action in which the court determines that a spouse or a child of one of the spouses was the victim of domestic abuse committed by the perpetrator during the marriage, and in incidental actions, shall be a separate obligation of the perpetrator.

Acts 1990, No. 1009, §3, eff. Jan. 1, 1991; Acts 2009, No. 204, §1; Acts 2015, No. 221, §1; Acts 2018, No. 264, §1.

Art. 2363. Separate obligation

A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse.

An obligation resulting from an intentional wrong or an obligation incurred for the separate property of a spouse is likewise a separate obligation to the extent that it does not benefit both spouses, the family, or the other spouse.

Acts 1979, No. 709, §1; Acts 1990, No. 1009, §3, eff. Jan. 1, 1991; Acts 2009, No. 204, §1.

Art. 2364. Satisfaction of separate obligation with community property or former community property

If community property has been used during the existence of the community property regime or former community property has been used thereafter to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.

Acts 1979, No. 709, §1; Acts 2009, No. 204, §1.

Art. 2365. Satisfaction of community obligation with separate property

If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.

If the community obligation was incurred to acquire ownership or use of a community corporeal movable required by law to be registered, and separate property of a spouse has been used after termination to satisfy that obligation, the reimbursement claim shall be reduced in proportion to the value of the claimant's use after termination of the community property regime.  The value of that use and the amount of the claim for reimbursement accrued during the use are presumed to be equal.

The liability of a spouse who owes reimbursement is limited to the value of his share of all community property after deduction of all community obligations.  Nevertheless, if the community obligation was incurred for the ordinary and customary expenses of the marriage, or for the support, maintenance, or education of children of either spouse in keeping with the economic condition of the spouses, the spouse is entitled to reimbursement from the other spouse regardless of the value of that spouse's share of all community property.

Acts 1979, No. 709, §1; Acts 1990, No. 991, §1; Acts 2009, No. 204, §1.

Art. 2366. Use of community property or former community property for the benefit of separate property

If community property has been used during the existence of the community property regime or former community property has been used thereafter for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used.

Buildings, other constructions permanently attached to the ground, and plantings made on the separate property of a spouse with community property belong to the owner of the ground.   The other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used.

Acts 1979, No. 709, §1; Acts 1984, No. 933, §1; Acts 2009, No. 204, §1.

Art. 2367. Use of separate property for the benefit of community property

If separate property of a spouse has been used during the existence of the community property regime for the acquisition, use, improvement, or benefit of community property, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.  The liability of the spouse who owes reimbursement is limited to the value of his share of all community property after deduction of all community obligations.

Buildings, other constructions permanently attached to the ground, and plantings made on community property with separate property of a spouse during the existence of the community property regime are community property.   The spouse whose separate property was used is entitled to reimbursement for one-half of the amount or value that the separate property had at the time it was used.  The liability of the spouse who owes reimbursement is limited to the value of his share in all community property after deduction of all community obligations.

Acts 1979, No. 709, §1; Acts 1984, No. 933, §1; Acts 1990, No. 991, §1; Acts 2009, No. 204, §1.

Art. 2367.1. Use of separate property for the benefit of separate property

If separate property of a spouse has been used during the existence of the community property regime for the acquisition, use, improvement, or benefit of the other spouse's separate property, the spouse whose property was used is entitled to reimbursement for the amount or value that the property had at the time it was used.

Buildings, other constructions permanently attached to the ground, and plantings made on the land of a spouse with the separate property of the other spouse belong to the owner of the ground.   The spouse whose property was used is entitled to reimbursement for the amount or value that the property had at the time it was used.

Acts 1984, No. 933, §1; Acts 1990, No. 991, §1; Acts 2009, No. 204, §1.

Art. 2367.2. Component parts of separate property

When a spouse with his own separate property incorporates in or attaches to a separate immovable of the other spouse things that become component parts under Articles 465 and 466, Article 2367.1 applies.

Acts 1984, No. 933, §1; Acts 2009, No. 204, §1.

Art. 2367.3. Satisfaction of separate obligation with separate property

If a spouse uses separate property during the existence of the community property regime to satisfy the separate obligation of the other spouse, the spouse whose property was used is entitled to reimbursement for the amount or value the property had at the time it was used.

Acts 2009, No. 204, §1.

Art. 2368. Increase of the value of separate property

If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed to the common labor.

Acts 1979, No. 709, §1.

Art. 2369. Accounting between spouses;  prescription

A spouse owes an accounting to the other spouse for community property under his control at the termination of the community property regime.

The obligation to account prescribes in three years from the date of termination of the community property regime.

Acts 1979, No. 709, §1.

Art. 2369.1. Application of co-ownership provisions

After termination of the community property regime, the provisions governing co-ownership apply to former community property, unless otherwise provided by law or by juridical act.

When the community property regime terminates for a cause other than death or judgment of declaration of death of a spouse, the following Articles also apply to former community property until a partition, or the death or judgment of declaration of death of a spouse.

Acts 1990, No. 991, §1; Acts 1995, No. 433, §1.

Art. 2369.2. Ownership interest

Each spouse owns an undivided one-half interest in former community property and its fruits and products.

Acts 1995, No. 433, §1.

Art. 2369.3. Duty to preserve;  standard of care

   A spouse has a duty to preserve and to manage prudently former community property under his control in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.

Acts 1995, No. 433, §1; Acts 2017, No. 197, §1.

Art. 2369.4. Alienation, encumbrance, or lease prohibited

A spouse may not alienate, encumber, or lease former community property or his undivided community interest in that property without the concurrence of the other spouse, except as provided in the following Articles.  In the absence of such concurrence, the alienation, encumbrance, or lease is a relative nullity.

Acts 1995, No. 433, §1.

Art. 2369.5. Alienation of registered movables

A spouse may alienate, encumber, or lease a movable issued or registered in his name as provided by law.

Acts 1995, No. 433, §1.

Art. 2369.6. Alienation, encumbrance, or lease of movable assets of former community enterprise

The spouse who is the sole manager of a former community  enterprise may alienate, encumber, or lease its movables in the regular course of business.

Acts 1995, No. 433, §1.

Art. 2369.7. Court authorization to act alone

A spouse may be authorized by the court in a summary proceeding to act without the concurrence of the other spouse, upon showing all of the following:

(1)  The action is necessary.

(2)  The action is in the best interest of the petitioning spouse and not detrimental to the interest of the nonconcurring spouse.

(3)  The other spouse is an absent person or arbitrarily refuses to concur, or is unable to concur due to physical incapacity, mental incompetence, commitment, imprisonment, or temporary absence.

Acts 1995, No. 433, §1.

Art. 2369.8. Right to partition;  no exclusion by agreement;  judicial partition

A spouse has the right to demand partition of former community property at any time.  A contrary agreement is absolutely null.

If the spouses are unable to agree on the partition, either spouse may demand judicial partition which shall be conducted in accordance with R.S. 9:2801.

Acts 1995, No. 433, §1.

Chapter 3. Separation of Property Regime

Art. 2370. Separation of property regime

A regime of separation of property is established by a matrimonial agreement that excludes the legal regime of community of acquets and gains or by a judgment decreeing separation of property.

Acts 1979, No. 709, §1.

Art. 2371. Management of property

Under the regime of separation of property each spouse acting alone uses, enjoys, and disposes of his property without the consent or concurrence of the other spouse.

Acts 1979, No. 709, §1.

Art. 2372. Necessaries

A spouse is solidarily liable with the other spouse who incurs an obligation for necessaries for himself or the family.

Acts 1979, No. 709, §1.

Art. 2373. Expenses of the marriage

Each spouse contributes to the expenses of the marriage as provided in the matrimonial agreement.  In the absence of such a provision, each spouse contributes in proportion to his means.

Acts 1979, No. 709, §1.

Art. 2374. Judgment of separation of property

A.  When the interest of a spouse in a community property regime is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse, or by the disorder of the affairs of the other spouse, he may obtain a judgment decreeing separation of property.

B.  When a spouse is an absent person, the other spouse is entitled to a judgment decreeing separation of property.

C.  When a petition for divorce has been filed, upon motion of either spouse, a judgment decreeing separation of property may be obtained upon proof that the spouses have lived separate and apart without reconciliation for at least thirty days from the date of, or prior to, the filing of the petition for divorce.

D.  When the spouses have lived separate and apart continuously for a period of six months, a judgment decreeing separation of property shall be granted on the petition of either spouse.

Acts 1992, No. 295, §1; Acts 1993, No. 25, §1; Acts 1993, No. 627, §1; Acts 2010, No. 603, §1, eff. June 25, 2010.

Art. 2375. Effect of judgment

A. Except as provided in Paragraph C of this Article, a judgment decreeing separation of property terminates the regime of community property retroactively to the day of the filing of the petition or motion therefor, without prejudice to rights validly acquired in the interim between filing of the petition or motion and rendition of judgment.

B. If a judgment has been rendered, in accordance with Article 2374(C) or (D), a reconciliation reestablishes the regime of community property between the spouses retroactively to the day of its termination, unless prior to the reconciliation the spouses execute a matrimonial agreement to the contrary. This agreement need not be approved by the court and is effective toward third persons when filed for registry in the manner provided by Article 2332. The reestablishment of the community is effective toward third persons when a notice thereof is filed for registry in the same manner.

C. If a judgment is rendered on the ground that the spouses were living separate and apart without having reconciled for at least thirty days from the date of, or prior to, the filing of the petition for divorce, the judgment shall be effective retroactively to the date the petition for divorce was filed, without prejudice to rights validly acquired in the interim.

Acts 1992, No. 295, §1; Acts 1993, No. 25, §1; Acts 1993, No. 627, §1; Acts 1997, No. 35, §1; Acts 2010, No. 603, §1, eff. June 25, 2010; Acts 2017, No. 197, §1.

Art. 2376. Rights of creditors

The creditors of a spouse, by intervention in the proceeding, may object to the separation of property or modification of their matrimonial regime as being in fraud of their rights.  They also may sue to annul a judgment of separation of property within one year from the date of the rendition of the final judgment.  After execution of the judgment, they may assert nullity only to the extent that they have been prejudiced.

Acts 1979, No. 709, §1.

Chapter 4. Marital Portion

Art. 2432. Right to marital portion

When a spouse dies rich in comparison with the surviving spouse, the surviving spouse is entitled to claim the marital portion from the succession of the deceased spouse.

Acts 1979, No. 710, §1.

Art. 2433. Incident of marriage;  charge on the succession

The marital portion is an incident of any matrimonial regime and a charge on the succession of the deceased spouse.  It may be claimed by the surviving spouse, even if separated from the deceased, on proof that the separation occurred without his fault.

Acts 1979, No. 710, §1.

Art. 2434. Quantum

The marital portion is one-fourth of the succession in ownership if the deceased died without children, the same fraction in usufruct for life if he is survived by three or fewer children, and a child's share in such usufruct if he is survived by more than three children.  In no event, however, shall the amount of the marital portion exceed one million dollars.

Acts 1979, No. 710, §1; Acts 1987, No. 289, §1.

Art. 2435. Deduction of legacy

A legacy left by the deceased to the surviving spouse and payments due to him as a result of the death are deducted from the marital portion.

Acts 1979, No. 710, §1.

Art. 2436. Nonheritable right;  prescription

The right of the surviving spouse to claim the marital portion is personal and nonheritable.  This right prescribes three years from the date of death.

Acts 1979, No. 710, §1.

Art. 2437. Periodic allowance

When, during the administration of the succession, it appears that the surviving spouse will be entitled to the marital portion, he has the right to demand and receive a periodic allowance from the succession representative.

The amount of the allowance is fixed by the court in which the succession proceeding is pending.  If the marital portion, as finally fixed, is less than the allowance, the surviving spouse is charged with the deficiency.

Acts 1979, No. 710, §1.