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
- 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).
- If there are two children then the entitlement is reduced to one quarter.
- If there are more than two children then the surviving spouse is entitled to one quarter.
- 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
- 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’.
- Put all property in joint names so that at least the surviving spouse will have 50% as their own.
- 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. Find out more about Teuten & Associates and how to reach them.
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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