Forced Heirship and Family Provision in Latin America

Abstract

Abstract Latin American succession laws are generally quite homogeneous, yet when it comes to mandatory 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 Spain and Portugal. Accordingly, jurisdictions like Argentina and Brazil 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 century, when they switched abruptly to a regime that protects only those close family members who are unable to support themselves. On the spectrum of freedom of testation, the 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 being 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 the rise of life expectancy are deemed to have eroded the foundations of forced heirship. In the light of these societal changes, many South America scholars advocate far-reaching reforms.