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Remarriage and the Family Home

June 2008

By Lee Aronson

Anyway, Ward had died a few months ago, Ms. Haskle was currently living in the home and just a few days ago Ms. Haskle had called Wally to say that the roof needed to be replaced. Wally wanted to know who would have to pay to replace the roof.

In Louisiana, there are special legal terms for what Ward had done in his will. He had left “usufruct” of the home to Ms. Haskle for the rest of her life. This means that Ms. Haskle could live in the home for the rest of her life but she could not sell the house. While Ms. Haskle was alive, Wally and his brothers would be “naked owners” (What can I say? Louisiana law has some weird terms.) of the home. This means that they can’t interfere with Ms. Haskle’s use of the home, but once she dies, the brothers become full owners of the home and can do whatever they want with it.

But who’s responsible for the home-ownership expenses while Ms. Haskle is alive?

According to Louisiana law, Ms. Haskle, the “usufructory,” is responsible for ordinary maintenance and repairs and keeping the property in good order. However, Wally and his brother, the “naked owners,” are responsible for any extraordinary repairs.  

Would you consider replacement of the roof to be an ordinary repair or an extraordinary repair? Louisiana law defines extraordinary repairs as “those for the reconstruction of the whole or a substantial part of the property.” Before this was explained to Wally, he thought that replacing a roof on a home would be an extraordinary repair. But after he learned that he would be responsible for extraordinary repairs, he quickly changed his mind and decided that he thought that replacing a roof wasn’t all that uncommon and was just an ordinary type of repair. What do you think?

In Wally’s case, it turned out not to matter whether replacing the roof was an ordinary or extraordinary repair. It turned out that the roof on the house had been in bad shape for a long time and needed to be replaced long before Ward had died. Louisiana law says that “the usufructuary is not bound to make repairs needed at the time of the creating of the usufruct. These repairs, and the attending expenses, are charged to the naked owner.” In other words, because the usufruct was created when Ward died and because the roof need replacing at the time when Ward died, the “naked owners,” Wally and his brother, would be responsible.

Wally then asked who was responsible for paying the property taxes on the home. Louisiana law makes Ms. Haskle, the “usufructary,” responsible for the property taxes, other “annual charges” and other “necessary expenses” while she continues to live in the home.

And here’s something else that Louisiana law says about situations like Wally’s and Ms. Haskle’s. I find it to be kind of odd that we have laws like this, but this is still the law on the books in Louisiana: if treasure is found on the property or in the home, it will belong to Wally and his brother. But if Ms. Haskle is the one who finds the treasure, then she is entitled to keep one half of it as a finder’s fee. How often do you think something like that comes up?

Lee Aronson is an attorney with Legal Services of North Louisiana. His practice areas include consumer protection law, housing law and health care law.