Forced Heirship and Family Provision in Latin America

Abstract

Latin American succession laws are generally quite homogeneous. Yet when it comes to limitations on testamentary freedom for the purpose of family protection, they split sharply into two groups, the composition of which, curiously, falls exactly along geographical lines. The South American jurisdictions are all found on one side, and those of Central America and Mexico on the other. The countries of the first group have, to this day, remained largely faithful to the tradition of forced heirship brought to the continent by the former colonial masters, Spain and Portugal. Accordingly, jurisdictions like Argentina, Brazil, and Chile reserve large parts of the estate, known as the "legítima", to descendants, ascendants, the surviving spouse, and sometimes even the surviving cohabitant of the deceased, and thus severely limit freedom of testation. By contrast, the Central American jurisdictions and Mexico upheld this tradition only until the late nineteenth and early twentieth centuries, when they switched abruptly to a regime that grants unlimited freedom of testation, subject only to a maintenance provision for close family members who are unable to support themselves. On the spectrum of freedom of testation, the vast majority of Latin American jurisdictions thus lie either at the very liberal or the very restrictive end.

In recent years, the South American regimes have increasingly been criticized as out of step with the realities of the twenty-first century. Just as in other parts of the world, the crumbling of the traditional family model and changes in the way wealth is created and organized, as well as the rise of life expectancy, are deemed to have eroded the foundations of forced heirship. In the light of these societal changes, and of legal developments on other continents, many South America scholars advocate a substantial increase of testamentary freedom.

Note: This pre-print version is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, OUP.

Keywords: law of succession, forced heirship, freedom of testation, maintenance obligations, estate planning, Latin American law