The rights of a surviving spouse in Uruguay

Planning to retire in Uruguay? What are the pros and cons? We continue our series on spouse's rights and what can you do to protect your husband or wife.
By Mark Teuten
inheritance laws uruguay
Last updated on January 24, 2020
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Children and parents have more rights to a deceased person’s assets than their surviving partner. So what can you do to protect your husband or wife?

Legal experts Mark Teuten and Associates continue their exploration into the reasons for making a will in Uruguay. In a previous article they covered some of the severe restrictions placed on people’s rights to freely dispose of their assets by Uruguayan law when they have surviving children—legitimate or not—and parents.

In this article they will look at one of the rights of a surviving spouse or partner and what can be done to ensure that they are not adversely affected by legal restrictions. We’ll refer to the spouse or partner as the ‘spouse’ in the article.

1. The Porción Conyugal—or the spouse’s share

As mentioned in our previous article a spouse is not a legal heir under Uruguayan law. Children and parents are recognized as such and are entitled to particular shares of a deceased’s estate. The exact share is dependent on their number. Their number also decides the percentage of assets that a person can dispose of freely in their will.

The ‘conjugal portion’ is defined in Art 874 of the Civil Code as being the amount necessary to maintain the spouse in similar circumstances to those they enjoyed during the marriage/cohabitation. But whilst this definition would seem to make it a type of maintenance payment, it is in fact clear from Art 881 that it is more definite than this. Article 881 states that it is a specific amount of the estate only varying according to the number of legal heirs. The surviving spouse is entitled to a quarter of the deceased’s assets when there are no descendants i.e. only surviving ascendants. When there are descendants the spouse is entitled to the same share as each child.

The right to the ‘conjugal portion’ arises immediately on marriage i.e. it is not subject to a minimum duration requirement.

Some practical examples of the spouse’s share in Uruguayan law

  1. If there is one child the surviving spouse is entitled to the same as that child i.e. one third of the estate. This figure is arrived at because where there are two legal heirs they are entitled to one third each (and the portion which can be freely disposed of is the other third).
  2. If there are two children then the entitlement is reduced to one quarter.
  3. If there are more than two children then the surviving spouse is entitled to one quarter.
  4. If there are no children, but there are surviving parents, the conjugal portion is also one quarter.

2. The matrimonial property scheme in Uruguay

The principal governing matrimonial property is that any property acquired during a marriage/cohabitation is owned in equal shares. However any property acquired before the marriage/cohabitation is the property of the individual and remains so afterwards.

So in a typical case where the matrimonial home is acquired after marriage (and the couple have not signed a formal “separation of assets” agreement), both spouses own 50%.  This 50% share is deducted from the amount of the ‘conjugal portion’.

So say the ‘conjugal portion’ is 200,000 USD in total, but the matrimonial home is worth 400,000 USD, then the surviving spouse will get nothing as he or she already has a half share in the house worth 200,000 USD.

Likewise any assets that the surviving spouse has of their own are also deducted from the conjugal portion.

There is no system of joint tenancy in Uruguayan law so that a spouse does not automatically become the owner of property on surviving his or her spouse.

3. Options to ensure surviving spouse gets as much as possible of estate

  1. Make a will and ensure your spouse gets the entirety of the part that is free to be disposed of and that this is expressly stated to be in addition to the ‘conjugal portion’.
  2. Put all property in joint names so that at least the surviving spouse will have 50% as their own.
  3. Ensure that assets like bank accounts and share holdings are in joint names so that the survivor can transfer them into their own name without probate proceedings being necessary.

4. What not to do

Do not make lifetime donations of real estate.  These should be avoided as whilst they are a valid means of transferring title, they will result in any property becoming unsaleable in the future. This is because of the right of legal heirs to question any donations in the future. The result of this is that no buyer will accept title deeds including a donation unless they were made more than 30 years ago.

So what is there to conclude about the rights of a surviving spouse in Uruguay?

A surviving spouse has a right to part of any property in Uruguay, but can be left in a situation of dependency on the goodwill of the deceased’s children and parents to ensure their lifestyle is not affected.

We have indicated some practical measures to try to ensure that spouse is left as much as possible of an estate (assuming that is the testator’s wish ?).

In our next article we will deal with the specific situation of the matrimonial home and the surviving spouse’s right to continue living there free of charge–which is a separate right to the ‘conjugal portion’.

By Ana Lia Mendez and Mark Teuten.

Mark Teuten is a British lawyer based in Montevideo since the 1990s. He has law degrees from both the UK and Uruguay. He can help you with your residency applications, setting up a registered company and other legal matters. Guru’Guay has recommended him to our readers who have praised his trustworthiness, clarity, prompt communication even over great distances and careful advice regarding courses of action.

This article is for information purposes only and should not be relied upon as legal advice. Please consult with a lawyer as to your particular circumstances.

Photo by Susanne Pälmer

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11 Responses

  1. mis suegros fallecieron y dejaron un departamento que en su momento se hicieron las sucesiones correspondientes a mi esposo y su hermana. ahora fallecio mi esposo. comenzo otra sucesion.
    mi pregunta es, si mi hija es la heredera de el 50%, no entiendo porque me hicieron agregar mi partida de matrimonio.

  2. Danke für den Beitrag. Interessant, dass ein Ehepartner nach uruguayischem Recht kein rechtmäßiger Erbe ist. Ich suche aktuell eine gute Rechtsanwältin für Erbrecht. Hoffentlich finde ich bald jemanden.

  3. Interessant, wie andere Länder es machen. Wie viele Kinder hat man denn in Uruguay durchschnittlich? Und was kostet eine Beerdigung oder ein Anwalt für Erbrecht?

    1. Hallo, Elisabeth. According to this government study, two is the ideal number of children for most Uruguayans and indicates that in Uruguay each woman has on average almost two children (1.88). Regarding the costs of a funeral, they vary according to the type of service chosen and there is no average, at least to our knowledge. You can reach out to Mark Teuten & Associates for information about inheritance lawyer costs.

  4. Meine Frau und ich haben überlegt, nach Uruguay auszuwandern. Vorher wollten wir uns noch zum Erbrecht dort informieren. Gut zu wissen, dass Ehepartner nach uruguayischem Recht kein rechtmäßiger Erbe sind.

  5. Good Afternood,
    If there is a spouse and 2 sons of the dead partner from another marieage? What happen with his inherited house from his father’s and his accounts that he left. His wife is dependent of account.

    1. Hi Carlos, I’d recommend that you contact the author of the article regarding this particular case. He speaks Spanish. Best wishes, Karen

  6. If there are no children or parents, but there is a spouse, she inherits.
    If there is no spouse either but there are brothers/sisters they inherit. If the siblings have predeceased then nieces/nephews inherit in their place.
    If there are no nieces or nephews, uncles/aunts are next in line and after them cousins.
    In the absence of any of these legal heirs the estate goes entirely to the state.

    Mark

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