Usufructs: Who Actually Gets to Make Decisions?
- Hampton Law Firm ⚖️
- Jul 19
- 7 min read
Coffee Shop Series
Last time we sat down over coffee, we answered the question I hear more than any other.
"Who owns the house?"
As you may remember, the answer wasn't nearly as simple as most people expect. In Louisiana, a surviving spouse may have a usufruct over property while the children own what the law calls the naked ownership. That means one person has the right to use and enjoy the property while someone else owns it.
Once people finally understand that concept, they almost always lean back in their chair, take another sip of coffee, and ask the questions they actually care about.
"Okay...so who pays for everything?"
"Can Dad rent the house?"
"What if the kids want to sell it?"
"Can Dad sell it?"
Those are much better questions because they're practical questions. They're the questions families are actually asking around kitchen tables after someone they love has passed away.
So let's talk about them.
The first thing I want you to remember is something we've already discussed. A usufruct doesn't give one person all of the rights and the other person none of them. That's what makes these situations unique. The usufructuary has important rights. The naked owner has important rights. Sometimes those rights overlap. Sometimes they conflict.
That's where lawyers end up drinking too much coffee.
Let's start with money because that's usually where the disagreements begin.
Imagine Dad has a usufruct over the family home after Mom passes away. Dad continues living in the home. The children own the naked ownership. Everything is peaceful until one July afternoon when the air conditioner dies. If you've ever spent a Louisiana summer without air conditioning, you know this is no longer a legal question.
It's an emergency. Dad looks at the children. The children look at Dad. Everyone silently hopes someone else is reaching for their checkbook.
This is where Louisiana law begins separating expenses into different categories. Some expenses are simply part of living in and maintaining a home.
Replacing a broken faucet.
Repairing a leaking toilet.
Fixing a garbage disposal.
Servicing the air conditioner.
Replacing worn flooring after years of normal use.
Repairing a section of fence after a storm.
These are the ordinary costs of homeownership. Generally speaking, those expenses are associated with the person enjoying the use of the property because they're the one receiving the benefit of living there.
Then there are the expenses that make everyone suddenly interested in obtaining three contractor estimates.
Foundation problems.
Major structural repairs.
Replacing an aging roof.
Extensive deterioration that affects the long-term value of the property itself.
Those are entirely different conversations, and Louisiana law often treats those major repairs differently because they preserve property that ultimately belongs to the naked owners.
Notice something about the way I've answered both questions. I keep saying "generally." That's not me trying to avoid giving you an answer. That's me trying to keep you out of my office.
One of the biggest mistakes people make is believing that every usufruct works exactly the same way. They don't. The law provides general rules. The will may change some of those rules. The document creating the usufruct matters. The facts matter.
Sometimes the parties agree to handle things differently. That's why I become slightly nervous every time someone tells me, "My cousin told me this is how it always works." Your cousin also thought cryptocurrency was a guaranteed retirement plan. Let's not let him handle your succession questions.
Now let's move to the question I probably hear more than any other.
"Can Dad rent the house?"
The answer surprises people because they assume ownership automatically controls everything.
Remember what a usufruct actually is. It's the legal right to use and enjoy property owned by someone else. Sometimes "enjoying" property means living there. Sometimes it means using farmland. Sometimes it means receiving income the property produces.
That means, depending on the circumstances and the terms creating the usufruct, renting the property may absolutely become part of the conversation.
Think about it this way.
Suppose Dad decides he doesn't want to live in the family home anymore. Maybe the house is simply too large. Maybe he wants to move closer to grandchildren. Maybe maintaining the property has become too much.
Does the house have to sit empty?
Not necessarily.
Depending on the circumstances, renting the property may make perfect financial sense.
Naturally, the next question becomes...
"Who gets the rent?"
Again, ownership and enjoyment are not always the same thing.
One person may own the property while another has the legal right to receive the benefits generated by that property during the existence of the usufruct.
That's one of the reasons I keep telling people not to think of a usufruct as simply "getting to live in the house."
It's much broader than that. A usufruct can involve homes. Rental property. Farmland. Investment property. Even certain financial assets.
The rights involved often extend well beyond simply having a place to sleep. That's why these conversations become so important during estate planning instead of after someone dies. The clearer these expectations are while everyone is alive and healthy, the less likely your family is to spend Thanksgiving arguing over who gets next month's rent check.
And trust me...
I've seen families ruin holidays over considerably less.
Now let's get to the question that almost always comes next.
"Can Dad just sell the house?"
This is usually the point in the conversation where someone says, "Well, he lives there, so I guess he can do whatever he wants." Not exactly.
Remember, a usufruct gives someone the right to use and enjoy property. It does not magically transform them into the owner. If the surviving spouse has a usufruct over the family home, that does not automatically mean he or she has the authority to sell the entire property simply because they have lived there for the last thirty years.
After all, someone else owns something too. The children own the naked ownership. So then the children usually ask the next question.
"Fine. If we're the owners, can we sell it?"
Again...
Not exactly. This is where Louisiana succession law frustrates people because nobody gets the answer they were hoping for. The surviving spouse cannot simply ignore the children's ownership rights. The children generally cannot ignore the surviving spouse's usufruct rights. Both interests exist at the same time.
Think about it like this.
Imagine two people inherit the same vehicle, except one person owns the title while the other has the legal right to drive it every day for the rest of their life. Neither person has complete control. Neither person can simply pretend the other doesn't exist. That's the practical reality of many usufructs. The result is that major decisions often require everyone to sit down and have the conversation they were hoping to avoid. Which, if you've ever been involved in a family succession, is sometimes easier said than done.
Fortunately, families don't always disagree.
In fact, many don't.
Sometimes everyone reaches the same conclusion. Maybe Dad has decided he no longer wants to maintain a four-bedroom home by himself. Maybe the children have no interest in keeping the property. Maybe everyone agrees the best financial decision is to sell the house and divide the proceeds according to their respective legal interests.
Can that happen?
Absolutely. One of the biggest misconceptions I hear is that a usufruct somehow freezes property forever.
It doesn't.
People can still work together. Families can still make agreements. Property can often be sold when the people holding the various interests agree to move forward together. Honestly, that's usually the best-case scenario. Courtrooms are expensive. Conversations are free. I've spent enough years practicing law to tell you that almost every family would rather solve these issues around a kitchen table than in a courtroom.
Unfortunately, grief doesn't always bring out the best in people. Sometimes it brings out old wounds that have absolutely nothing to do with the property. The house simply becomes the battlefield. I've watched siblings argue over repairs that weren't really about repairs. I've watched disagreements over rental income that had very little to do with money.
I've watched children become convinced a surviving parent was trying to take something that belonged to them, while that surviving parent was equally convinced the children were trying to force them out of the only home they had left. Most of the time, nobody is actually being greedy.
They're scared.
One side is afraid of losing security.
The other side is afraid of losing an inheritance.
Fear has a funny way of disguising itself as anger. That's why I always tell clients that estate planning isn't just about property, it's about people.
—
Judith L. Hampton
Attorney at Law
Hampton Law Firm, LLC
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