National Report Mexico - Notarius International

200 J. A. Márquez González, National Report Mexico Notarius International 3-4/2005 

National Report Mexico 

Contents 

page 

1. Notarial Law 200 

2. Civil Law 203 

3. Family Law 204 

4. Law of Succession 207 

5. Company Law 211 

6. Private International Law 213 

7. Tax Law 214 

This is a report on the legal situation at 1 June 2005. 

1. Notarial Law 

1.1. History 

Although a certain type of public officials, known as 

tlacuilos, who were responsible for recording historical 

facts or the most significant events, existed in pre-Hispanic 

times, the institution of notary was only really introduced 

to the territory now known as Mexico with the 

discovery of America and the subsequent conquest of the 

native peoples. Thus, we know that the conquistador, 

HERNÁN CORTÉS, was accompanied by a scribe named 

DIEGO DE GODOY. In fact, the first notarial record drafted 

on the American continent was made in 1519 at the present-day 

port of Veracruz. 

In the next three hundred years, which were characterised 

by the new-Hispanic colonial system, the scribes of 

Virreinato fully adapted their practices to the legal structure 

existing in Spain, albeit perhaps with certain special 

exceptions applicable in the legislation known as the Recopilación 

de Leyes de los Reinos de las Indias (Compilation 

of Laws of the Kingdoms of the Indies). 

With the advent of the movement for independence of 

the American colonies in the second and third decades of 

the 19th century, the institution of notary suffered severe 

disruption due to the break, albeit gradual, with the legal 

system of Spain. Nevertheless, many structures of the 

profession remained valid and the everyday practice of 

notaries doubtless reflected the same Spanish tradition. 

Sources of law in this period are dispersed throughout a 

number of laws that are still included in the Recopilación 

de Indias (Compilation of the Indies), the Novísima Recopilación 

(New Compilation), the Fuero Real (Royal 

Charter) and the Siete Partidas (Seven Divisions). 

1.2. Types of notary 

How many types of notary are there in Mexico Strictly 

speaking, there is only one holder of the post per notary 

public's office and that notary assumes the legal title of 

notary or notary public. 

The concept of escribano público still exists in Yucatán. 

These officials are also appointed by the local government, 

but only discharge their duties for three years. 

They need not necessarily be lawyers. They have the 

same capacity to attest as notaries themselves, provided 

that the sum involved in the attested acts does not exceed 

500 days' minimum salary, i.e. $ 22,025 pesos – equivalent 

to approximately USD 2,000. 

As far as the assistant is concerned, there is a large disparity 

of names and duties, since the terms suplente (assistant), 

asociado (associate), adscrito (adjutant), interino 

(intern), supernumerario (supernumerary), auxiliar 

(auxiliary), provisional (provisional), sustituto (substitute) 

are all used, according to the federal state in question. 

There are currently around four thousand notaries 

throughout the country, serving a population of approximately 

100 million. 

1.3. Sources of law 

The United States of Mexico consists of a total of 32 

federal states, including the Federal District. These 

states have independent internal systems and, therefore, 

each has a Civil Code (although most of these Codes do 

not differ from one another to any great extent). The same 

occurs with local laws governing notaries and registries. 

Thus, the institutional legislative structure for the Mexican 

notarial profession consists of a complex mosaic of 

32 civil codes (plus a Federal Civil Code), 32 laws governing 

notaries and 32 laws governing registries although, 

on the other hand, mercantile matters are governed 

at a federal level and consist of one single Commercial 

Code and one single Law on Companies. 

This study will focus on the Civil Code of 1932 and the 

Ley del Notariado (Notary Law) of 2000, both relating to 

Mexico City, not forgetting the particular features that 

naturally exist in other federal states. 1 Particular attention 

has been paid to all of these and the applicable legal provision 

is cited in each case to facilitate consultation. 

1.4. Access to the profession 

1.4.1. The Notarial Degree 

The Notary Law creates what is known as the Notarial 

Degree, since section 49 of that law establishes as follows: 

Training as a notary and the dissemination of legal impartiality 

and knowledge to the benefit of the legal profession 

are guaranteed by this law and the Notarial Degree 

provides theoretical and practical training to achieve 

that. It also provides sufficient deontological and personal 

training so that, through competitive examinations set 

by specially qualified juries, legal professionals who are 

suitable candidates to work as notaries can gain access to 

the profession in optimum conditions as far as service 

and equality of access are concerned, for the benefit of 

the city and for the positive development of the profession 

of notary. 

1 Mexican laws (including Federal and State laws) can be found at 

http://www.diputados.gob.mx/LeyesBiblio/gobiernos.htm 

As far as its age is concerned, the current status of notarial legislation 

is as follows: in Tabasco, the law dates from 1976 and in Yucatán it 

dates from 1977. These are the oldest. The most recent notarial laws 

are Campeche (2000), the Federal District (2000), Veracruz (2004), 

Chiapas (2005) and Nayarit (2005).

Notarius International 3-4/2005 J. A. Márquez González, National Report Mexico 201 

The Notarial Degree is governed by eight principles, 

i.e.: excellence, specialisation, legitimation, objectivity, 

professionalism, impartiality, sustainability and independence 

(article 50 of the Notary Law; article 53, notarial 

laws of Nayarit). 

1.4.2. Public examinations 

Access to the profession invariably takes place through 

competitive examinations (although this is not a general 

rule throughout the country) and by satisfying a number 

of requirements contained in article 54 of the Notary 

Law. These include the following requirements: candidates 

must be native Mexican; they must be legal professionals 

and they must prove a minimum of twelve 

months' uninterrupted practice as notaries. 

There is an increasing tendency to require competitive 

examinations in the profession of notary. Currently a total 

of 27 federal states require an examination to be 

passed for access to the post, although we should clarify 

that in the states of Coahuila and Querétaro the requirements 

may be dispensed with by the state government in 

certain cases through an express legal order. 

The notarial laws of the states of Yucatán, Hidalgo and 

Puebla only require an examination for candidates to 

the profession, but not to obtain the post of notary of a 

notary public's office. The notarial law of Puebla also dispenses 

with the requirement to pass the candidates' examinations 

in the case of lawyers who already possess the 

university qualification of “notarios” [notaries]. In this 

federal state and also in the state of Veracruz, assistants 

are authorised to succeed to the post of notary public of a 

notary's office without any need for a competitive examination 

(articles 65 of the Puebla notarial law and 55 of 

the Veracruz notarial law). 

Finally, the states of Aguascalientes and Michoacán are 

the only states that do not require a competitive examination 

either to gain access to the post of notary public or 

for candidates to practise the profession. 

1.5. Notaries' duties 

1.5.1. Execution of public documents. 

In general, the duties of a notary are confined to the execution 

of public documents, which confers authenticity 

and legal certainty on the transactions that they witness at 

the request of the interested parties. 

“A notary is a legal professional authorised by the 

State to execute documents and who is responsible for 

receiving, interpreting, drafting and giving legal form to 

the wish of the persons appearing before him and conferring 

authenticity and legal certainty on acts and facts furnished 

to him for witnessing by recording them in public 

documents drafted by him. The notary keeps the documents 

in the files in his charge, reproduces them and witnesses 

them. He also acts as an auxiliary in the administration 

of justice as a counsellor, an arbitrator or an international 

advisor in the terms stated in the relevant legal 

provisions” (article 42 of the Notary Law and also article 

42 of the notarial law of Nayarit). 

There can be no doubt that this function is of a complex 

nature: “... it is public inasmuch as it derives from powers 

of the State and the law, which enshrine professional 

activities of notaries and notarial documentation in the 

service of society. On the other hand, it is independent 

and free for the notary with the public capacity to witness 

who exercises it.” (article 26 of the Notary Law). 

Nevertheless, the function of the notary, thus conceived, 

is constrained by a system of incompatibilities, 

prohibitions and exceptions. Thus, article 32 of the Notary 

Law provides that the office of notary is incompatible 

with any public or private dependence or employment, 

post or commission and with professional practice as a 

lawyer. Neither may notaries be merchants, ministers of 

religion or economic agents of any type. A notary cannot 

be removed from his post. 

In accordance with the most refined national doctrine, 

a notary public's activities consist of listening, interpreting 

and advising the parties; and preparing, drafting, certifying, 

witnessing and reproducing the document. 2 

1.5.2. Notaries' powers 

The most significant powers conferred on notaries include 

the following: 

- In civil law: to draft all types of agreements between private 

individuals, such as purchases and sales, exchanges, 

donations, loans, leases, condominium systems, creation 

of real rights, guarantee agreements, etc. 

- In family law: the execution of agreements between 

spouses on the marital regime, pre-divorce or judicial 

separation agreements, agreements on parental authority, 

custody, guardianship, changes of name, certificates 

of identity, donations between spouses, acknowledgements 

of paternity and creation of “patrimonio de 

familia” [family property]. 

- In law of succession: the making of wills, the processing 

of succession proceedings, testate and intestate succession 

proceedings, partitions and awards by inheritance. 

- In company law: documents incorporating companies, 

drafting of minutes of ordinary and extraordinary general 

meetings, transfer of shares, and dissolution and 

liquidation of companies, with the respective notarisation. 

- In agrarian law: participation in certain meetings relating 

to the system of communal (or community) ownership 

and transfers of plots. 

- In procedural law: processing of records to certify a 

range of factual situations that may be required by the 

interested parties in the procedure for prior formulation 

of evidence. 

In some federal states of the Republic, the notary plays 

an important part in procedural law, specifically in matters 

of voluntary jurisdiction. In the case of Veracruz, for 

example, the notary may take part in the following acts: 

2 BERNARDO PÉREZ FERNÁNDEZ DEL CASTILLO, Derecho notarial (Notarial 

Law), Porrúa, México, 1997, page 149.


- Proof of facts and accreditation of rights; 

- Accreditation of residence, good conduct or financial 

dependence; 

- Verification of possession of a real right; 

- Voluntary change of name; 

- Voluntary procedure for survey and demarcation; 

- Voluntary creation and cancellation of family property; 

- Voluntary liquidation of property held jointly by spouses; 

- Voluntary creation and amendment of marriage contracts; 

- Testate or intestate succession, and 

- Unanimous waiver and appointment of executor (article 

699-A of the Code of Civil Procedure of Veracruz). 

1.6. Procedure for execution 

1.6.1. Execution 

Articles 100-142 of the Notary Law describe in detail 

the procedure for notarial execution. Thus, deeds must be 

issued on indelible media with no abbreviations, except 

in the case of transcripts. No numbers must be written unless 

they are also stated in words and unused space must 

be crossed through. Corrections may be made using the 

method of writing between the lines, indicating the incorrect 

expression by means of a line, but in any case finally 

saving what is corrected. Changes and crossings out 

are strictly prohibited. 

The notary must draft deeds in Spanish, although in 

exceptional circumstances he may enter words in another 

language. He must state the place and the date, the full 

names of the appearers and the legal name of the act. He 

must also carefully record the antecedents, listing the respective 

titles of ownership, as appropriate, the registration 

particulars and the necessary administrative and tax 

documents. Likewise, he must describe the property or 

subject-matter of the business, as appropriate, in detail, 

list the powers or authorities for representation, draft in 

order the clauses agreed by the signatories and any waivers 

of rights. He must attach any documents that he 

deems important to the appendix and he must certify and 

attest that he knows the signatories (stating their general 

particulars), that he has assured himself of their identity, 

that he read the deed out to them and that he explained 

its legal scope to them. He must also certify the facts 

placed before him. He must do all this in clear, concise, 

precise legal language, with no obsolete or antiquated 

words or formulae. At the end of the deed, the notary 

must obtain the signatures or marks of the signatories and 

appearers and witness the deed with his signature, his 

stamp and the expression “Ante mí” (Before me). 

1.6.2. Open or closed record 

When a document has been drafted, it is issued on folios 

or in books authorised by the local government, either 

in the form of an “open” record or a “closed” record. 

The folios making up the “open” record have a consecutive 

identification number and are subject to documentary 

security procedures consisting of watermarks or other 

distinctive marks. 

There is currently a decisive movement towards legislative 

reform in favour of “open” records. A total of 21 federal 

states now contemplate these records in their legislation 

as being either obligatory or optional and 11 states do 

not, although we should point out that 4 of them possess 

the record known as the “special open” record for executing 

deeds for immovable properties of “social interest” 

which other federal states have abolished, precisely to introduce 

the “open” protocol in a generalised manner. 

Interested parties have the right to obtain transcripts, 

certified reproductions and certificates of the document 

from the notary of either the full document or part thereof, 

provided that no damage ensues in this latter case. The 

transcripts executed by notaries are subject to security 

procedures on one cover, which identifies the notary, the 

number of his notary public's office, the respective jurisdiction 

and the local government to which it belongs. It is 

also common for the cover to show the notary's private 

logotype or letterhead. In turn, it is mandatory for the 

printed sheets of transcripts to bear the seal and the signature 

or paraph of the notary and, in some cases, the respective 

kinegram. 3 

1.6.3. Public documents 

Public documents are documents that a public official 

who has been granted the authority to attest documents is 

authorised by law to draft, within the limit of his powers. 

Public documents are also those documents issued by 

public officials when discharging their duties. The classification 

of public is shown by the fact the document bears 

regular stamps, signatures or other external signs provided 

by law, as appropriate (article 129 of the Federal Code 

of Civil Procedure). 

1.7. Notaries' tariffs 

There is no applicable general system of notaries' tariffs. 

In fact, such a system is established in few federal 

states, including the Federal District and Veracruz. It may 

be that in other states it is provided by law and although 

it has actually been issued, in practice it is meaningless 

either due to its age or because of the complexity of its 

application or because it is out of date due to the recent 

financial inflation in Mexico. 

1.8. Professional organisations 

Most of the notarial laws in the Republic of Mexico 

contemplate an association as an institution that obligatorily 

groups together all the notaries in the federal state. 

From a national perspective, the association known as 

the Asociación Nacional del Notariado Mexicano 

(ANNM) 4 (National Association of Mexican Notaries) 

was founded in 1955. All of the notariates in the country 

3 The new notarial laws of Veracruz, Tabasco and Nayarit already require 

the use of the kinegram (article 136 of the Veracruz notarial 

law) or hologram (article 40 of the Tabasco notarial law and article 

148 of the Nayarit notarial law).


are voluntarily affiliated to this body and it also includes, 

in accordance with its statutes, the Presidents of the local 

notarial Associations and Councils throughout the country, 

which means that it is highly representative at a national 

level, although it is true that not all notaries are affiliated 

to it. 

2. Civil Law 

2.1. Civil law in general 

The Código Civil del Distrito Federal (CCDF) [Civil 

Code of the Federal District (CCFD)] has been in force 

since 1932 and has been subject to considerable changes 

in recent years. It continues to be profoundly influenced 

by the Napoleonic code of 1804 and is, in general, structured 

in quite a similar way. 

All the codes in the Republic are very similar, but that 

does not mean that there are no differences between 

them. Some of those differences are quite significant. 

For example, most of the codes contemplate the doctrine 

of “legal act”. In fact, articles 1792, 1973 and 1859 

of the CCFD contain the definitions of agreement and 

contract, obeying in this regard the French theory enshrined 

in the Code of Napoleon. Nevertheless, some 

codes differ from this system of doctrine. This is the case 

with the civil codes of Quintana Roo (articles 135-425), 

Coahuila (articles 1899-2198) and Guerrero (articles 

1593 et seqq.), which adhere to the theory of “legal business”. 

The oldest civil codes in the country are those of Veracruz 

(1932), Nuevo León (1935), Michoacán (1936), 

Chiapas (1938), Hidalgo and Sinaloa (1940), Campeche 

and Oaxaca (1943), San Luis Potosí (1946), Aguascalientes 

(1947), Durango (1948), Sonora (1949), Colima 

(1953), Guanajuato (1967), Baja California and Chihuahua 

(1974) and Tlaxcala (1976). The newest are those of 

Quintana Roo (1980), Nayarit (1981), Puebla (1985), Zacatecas 

(1986), Tamaulipas (1987), Querétaro (1990), 

Guerrero and Yucatán (1993), Morelos (1994), Jalisco 

(1995), Baja California Sur (1996), Tabasco (1997), Coahuila 

(1999) and, finally, Estado de México (2002). 

2.2. Property law 

Book Two of the CCFD deals extensively with possession, 

ownership, usufruct, use, habitation and easement 

and is not until the Second Part (Various types of contract) 

of Book Four (Obligations) that it examines the alienation 

of immovable property in each of the specific 

contracts in question. 

In our law, the contract of purchase and sale is consensual. 

In fact, in accordance with the provision contained 

in article 2248, “A purchase and sale will exist when one 

of the parties to the contract agrees to transfer the ownership 

of a thing or a right and the other party, in turn, 

agrees to pay a certain price for them in money”. In general, 

the sale is perfected when the parties have agreed on 

the considerations, even though these may not yet have 

been physically delivered. 

2.3. Alienation of immovable property 

2.3.1. Requirements in terms of form 

A contract of purchase and sale is required to adopt a 

certain specific form when it deals with real estate properties. 

The CCFD provides that alienations up to the value 

of 365 times the minimum general daily salary of 

Mexico City (approximately $ 16,100 pesos, equivalent 

to approximately USD 1,500) may be carried out in a private 

document before two witnesses, with the signatures 

being confirmed before a notary, a judge or a registrar. 

This is also the case with operations of creation of transfer 

of real rights for the same sum. Contracts relating to 

alienations carried out by the government for poor people 

may, on the other hand, dispense with the witnesses and 

the certification of signatures. It should be clarified that 

these social-interest contracts are almost always granted 

a 50% reduction of the tariff. All contracts that exceed 

that amount of USD 1,500 must be executed in a public 

deed before a notary. 

2.3.2. Execution in a public deed 

To sum up, the procedure for executing a public deed 

may be summarised as follows: 

- First, the notary is obliged to obtain a certificate from 

the public registry office relating to the existence or 

otherwise of encumbrances in connection with the 

property to which the transfer relates. 

- This request also serves as a preventive notice in which 

the disclosed transaction is mentioned. The registrar issues 

a note of submission, which is valid for 30 calendar 

days. 

- When the deed has been signed, another preventive 

notice is issued by the notary, but now with the addition 

of the date of the deed and its signature. 

- The notary must then continue with the procedure of 

payment of fees and taxes relating to the transaction in 

question and when they have all been paid, he must issue 

the respective transcript for its final entry on the 

public register. 

2.3.3. Entry on the register 

The institution of registration operates according to 

the principles of public recording, entry, speciality, consent, 

successive intervals, request, priority, legality and 

presumption of accuracy of the register. 

Article 3042 of the CCFD states that the following acts 

must be registered: 

- Titles whereby dominion, original possession and other 

real rights on immovable property are created, declared, 

recognised, acquired, transferred, amended, 

restricted, encumbered or extinguished; 

- The creation of family property; 

- Contracts for lease of immovable property for a period 

of over six years and leases in which more than 

three years' rent is paid in advance; and 

4 Internet: www.notariadomexicano.org.mx/


- Other titles that the law expressly orders to be registered. 

2.4. Contracts with property promoters 

In Mexico, this type of contract is partially governed by 

the Ley Federal de Protección al Consumidor (Federal 

Consumer Protection Law). Articles 73-76 of this law 

govern transactions involving immovable properties and 

provide that related acts will only be subject to this law 

when the party providing the property is a real-estate developer, 

builder, promoter or other person involved in advising 

and selling houses to the public that are intended 

for dwellings or when the consumer is granted the right to 

use properties through the system of time sharing in accordance 

with articles 64 and 65 and that such contracts 

must obligatorily be registered at the Federal Consumer 

Protection Agency. Also, the contract in question must 

comply with a number of minimum requirements that are 

governed in detail in the law (articles 73 bis and 73 ter). 

2.5. Property in condominium and surface area occupancy 

rights 

Property in condominium is governed in Mexico by a 

specific law from 1999 named the Ley de Propiedad en 

Condominio de Inmuebles para el Distrito Federal 

(LPCI) (Law of Property in Condominium of Immovable 

Property for the Federal District), which governs its creation, 

alteration, organisation, functioning, administration 

and termination. There are three types of condominium 

according to its structure: vertical, horizontal and 

mixed. It may be used for housing, commerce or services, 

industry and mixed use. 

The creation of the system requires a statement of will in 

a public deed executed before a notary. The deed creating 

the system of property in condominium must be entered at 

the public registry after the relevant fees have been paid. 

Surface area occupancy rights are not expressly mentioned 

in the CCFD. 

2.6. Restricted real rights on immovable property 

The real rights enshrined in our legislation are those of 

ownership, co-ownership, usufruct, use, habitation, easement, 

pledge and mortgage. 

The right of ownership is contemplated in articles 830- 

937 of the CCFD in relation to the provisions contained 

in article 27 of the Political Constitution of the United 

States of Mexico (PCUSM): 

Land and water within the bounds of Mexican national 

territory are originally owned by the nation, which had 

and has the right to transfer ownership of them to private 

individuals, thus constituting private property. Joint stock 

companies may own rural land, though only the area that 

is necessary to fulfil their object. The law containing the 

regulations on this matter will regulate the capital structure 

and minimum number of shareholders of these companies 

so that the land owned by the company does not 

exceed the limits on pequeña propiedad (small agrarian 

private ownership parcels) in relation to each shareholder. 

Likewise, the law will state the conditions for foreign 

participation in those companies. 

Another type of restriction relates to the acquisition of 

rural land by joint stock companies (only to the area that 

is necessary to fulfil their object) and to the creation of 

family property (which cannot be alienated and cannot be 

attached, as stated in the same article 27, section XVII of 

the PCUSM). 

With regard to the right of pledge, we must clarify that 

a recent reform in 2003 amended the General Law on 

Credit instruments and Transactions, the Commercial 

Code, the Law on Credit Institutions, the Law on the Securities 

Market, the General Law on Mutual Insurance 

Institutions and Companies, the Federal Law on Deposit 

Institutions and the General Law on Auxiliary Credit Organisations 

and Activities to allow pledges without transfer 

of ownership and other types of guarantees, among 

other things. 

3. Family law 

The legal system relating to the family is included in 

the Civil Code, except in the cases of the states of Hidalgo 

and Zacatecas. In fact, these two federal states have 

separate codes of family law. 

3.1. Matrimonial law 

Some codes define the institution of marriage. These 

include the civil code of Veracruz, article 75 of which 

states as follows: “Marriage is a union between one single 

man and one single woman who live together to carry 

out the essential purposes of the family as a social and 

civil institution”. In the case of the CCFD, the institution 

is not defined and the code only contains the clarification 

that marriage must take place before the officials established 

by law and observing the formalities that the law 

requires. 

Neither is it common for civil codes to define the concept 

of the family. Nevertheless, the civil codes of the 

states of Aguascalientes (747) and Guerrero (article 374), 

the Family Code of Hidalgo (article 340), the civil codes 

of Jalisco (article 778), Michoacán (article 120), Querétaro 

(article 135), Quintana Roo (article 1190), Tamaulipas 

(article 663) and the Family Code of Zacatecas (3rd 

article) contain dogma defining the concept. 

Some civil codes classify marriage as a social and civil 

institution (Baja California, Hidalgo, Jalisco, Querétaro, 

Veracruz), whereas others simply state that it is a contract 

(Federal District, Oaxaca and Puebla). We should point 

out that article 120 of the Civil Code of Morelos states 

that, “The Morelian family is a natural grouping...”. 

3.2. Celebration of marriage 

The capacity to enter into matrimony. Civil legislation 

establishes a minimum age for the bride and bridegroom. 

The bridegroom must be at least sixteen years of age and 

the bride must be at least fourteen years of age and this 

provision coincides in almost all the civil codes in the 

Mexican republic. 

The states of Puebla and Jalisco impose the same minimum 

age on the bride and the bridegroom – sixteen 

years of age (articles 300 and 260, respectively), while 

the Federal Code of Hidalgo requires a minimum age of


18 (article 30 section II), as does the Civil Code of Guerrero 

(article 412). We should point out that article 157 of 

the Civil Code of Baja California Sur imposes a minimum 

age of 18 for the man and 16 for the woman. 

If necessary, dispensations of age can be granted for serious, 

justified causes. This occurs, in any case, with minors 

who, in order to marry, require the consent of their 

progenitors or, if their parents are not living, of their 

grandparents. The law also provides that, in the absence 

of parents or grandparents, consent must be given by 

guardians and, in extreme cases, by the judge of the family 

court. 

3.3. Divorce 

3.3.1. Administrative divorce 

Article 266 of the CCFD state specifically that, “Divorce 

dissolves the marital union and renders the spouses 

free to enter into another union”. The simplest, quickest 

way in which a divorce can be obtained is known as 

an administrative divorce. 

The marital union may be dissolved through a simple 

declaration by both spouses when they are both of legal 

age and have no children below the age of eighteen and 

have no assets or have liquidated the property held jointly 

by the spouses, if any (article 272). 

3.3.2. Judicial divorce by consent 

The second type of divorce is somewhat more complex. 

It presupposes that the spouses wish to divorce, but 

do not fulfil the conditions provided in the first paragraph 

of article 272, i.e., they are not yet of legal age or they 

have children or they have not liquidated the property 

held jointly by the spouses. 

If any of these situations apply to the spouses, they are 

obliged to submit an agreement relating to these points to 

the family court. When approval has been obtained, the 

procedure continues on a routine basis. 

It is important to specify that both procedures, both the 

administrative procedure (article 272 of the CCFD) and 

the judicial procedure for prior approval of the agreement 

(article 273 of the CCFD) cannot under any circumstances 

be requested until one year has passed from the celebration 

of the marriage, whereby the legislator ensures 

that it is not the result of a passing whim or an impulsive 

decision by the spouses. 

3.3.3. Divorce due to a serious cause 

Unlike the previous two types, the third and final type 

of divorce in our law takes place due to the existence of 

a serious cause, as provided in detail in article 267 of the 

CCFD, and naturally does not entail the consent of both 

spouses. 

The procedure for requesting this type of divorce is also 

provided in the Code of Civil Procedure for the Federal 

District, though in a different section since there is no 

specific procedure for it, it being processed through the 

procedures of ordinary proceedings, which are governed 

in articles 251 et seqq. of that same legal text. 

3.4. Marital property regime 

The Civil Code expressly provides that a marriage 

contract must be made, according to the regime for property 

held jointly by the spouses or separation of property 

(articles 98, 178 CCDF). 

3.4.1. Property held jointly by the spouses 

Depending on the matrimonial contract, this regime 

may include any property owned by the spouses, not only 

at that moment but also any property that they may acquire 

in future, is included in a fund of property. In the 

marriage contract the spouses may define which property 

is jointly held. In the case of immovable property being 

made joint property, the contract that governs the 

joint property must be executed in public deed before a 

notary and must also be entered at the Public Land 

Registry for them to take effect vis-à-vis third parties. 

As a general rule in most states, unless the spouses 

have agreed otherwise, the joint property comprises all 

property acquired by one or both of the spouses after the 

date of marriage (community of acquisitions). However, 

property acquired by a gift to one of the spouses only or 

by succession or testamentary legacy or by the whim of 

fortune, remains separate property of the said spouse (as 

well as property acquired prior to the marriage) (article 

172 CC Chihuahua, article 182 quintus CCDF, articles 

303-306 CC Jalisco, article 207 CC Oaxaca, article 338 

CC Puebla, articles 735-738 CC Quintana Roo, articles 

196-201 CC Tabasco, article 173 CC Tamaulipas, article 

172 CC Veracruz). 

3.4.2. Separation of property 

In the regime of separation of property, the spouses retain 

ownership and administration of the assets that belong 

to them under the contract, along with any income 

that may be generated from them. This is precisely the 

opposite situation to property held jointly by the spouses. 

3.4.3. Legal presumptions 

In practice, an increasing number of couples prefer the 

regime of separation of property, although it is true that 

previously most spouses chose to hold their assets jointly. 

It is also clear that an important reason for this is that 

when no marriage contract is executed, many civil codes 

in the Republic establish the legal presumption that the 

property regime is that of property held jointly by the 

spouses. This is, in fact, the general rule specified in the 

following civil codes: the Civil Codes of Chihuahua (article 

165), Morelos (article 141), Nuevo León (article 

178), Puebla (article 338), Quintana Roo (article 719), 

Tabasco (article 180) and Veracruz (article 166). The presumption 

is of property held jointly in the following legal 

systems: Aguascalientes (article 209), Jalisco (article 

282), Oaxaca (article 206), Sonora (article 270) and Tamaulipas 

(article 172). 

Furthermore, the following codes expressly contemplate 

a presumption which is directly contrary to this: 

Campeche (article 189), Guanajuato (article 176), Guerrero 

(article 437), the Federal Code of Hidalgo (article


60), the Civil Codes of Michoacán (article 173), Querétaro 

(article 166), Tlaxcala (article 60) and Yucatán (article 

117) and the Federal Code of Zacatecas (article 138) and 

separation of property will then be considered as established, 

with the relevant legal effects. 

The other codes contain no express provision in this regard. 

3.4.4. Marriage Contracts on separation of property 

The contract that establishes separation of property 

must be recorded in an authentic act if that is the case, 

except when made prior to the marriage (article 180 

CCDF). In any case, it must contain a specific inventory 

for each solely-owned asset and any debts. 

The most important legal consequence of separation of 

property is, naturally, the unquestionable ownership of the 

solely-owned assets. Thus, the income from assets continues 

to belong to the spouse that owns them. It is also expressly 

established that each spouse has the sole right to acquire 

and manage income from services provided by them. 

There is a very important exception to this relating to 

cases in which the spouses acquire property jointly by donation, 

inheritance, bequest, gift or any other title free of 

charge. In this case, both spouses are responsible for the 

management of the asset and it is considered that the relevant 

division must be carried out. 

Neither of the spouses may charge the other fees for 

personal services, but a recent, somewhat controversial, 

amendment in Mexico City now provides that compensation 

may be demanded of up to 50% of the assets acquired 

in the marriage (article 289 bis of the CCFD. 

3.5. Consensual property regimes and marriage contracts 

As we have already seen, our law allows the spouses to 

make any express marriage contract that they see fit either 

to create property held jointly by the spouses or establish 

separation of property. In any case, the contract 

defines their situation with regard to property. 

However, the law establishes the legal presumption that 

everything that is not expressly stipulated must be governed 

by the general provisions applying to property held 

jointly by the spouses (articles 183-206 bis of the CCFD). 

Section V of article 98 states that an application to marry 

must necessarily be accompanied by an agreement made 

by the prospective spouses with regard to their assets, 

which must clearly state the type of system agreed. Other 

legal systems, on the other hand, are much more specific 

in that regard. 

The second paragraph of article 171 of the Civil Code 

of Veracruz states that, when the presumption has been 

applied, the rules provided for civil societies or co-ownership 

will apply as far as possible. Nevertheless, a recent 

reform now requires the simultaneous presence before a 

notary of both spouses in an acquisition in order for any 

asset to be considered as an indivisible, communal asset. 

Furthermore, most federal states in the republic no longer 

require the need for judicial authorisation to make 

agreements between spouses. Hardly a dozen states still 

require permission: Campeche (articles 185 and 186), 

Chiapas (articles 171 and 172), Guerrero (articles 432 

and 433), Hidalgo (articles 176 and 177), Michoacán (articles 

170 and 171), Oaxaca (articles 173, 174 and 175), 

Quintana Roo (articles 712, 713 and 714), San Luis Potosí 

(articles 159 and 160), Sinaloa (articles 174 and 175), 

Tabasco (articles 173, 174 and 175), Tlaxcala (article 58) 

and Zacatecas (articles 131 and 132). 5 

3.6. Maintenance and alimony 

The concept of maintenance contained in Mexican law is 

extremely broad. Thus, article 308 states that “Maintenance 

consists of food, clothes, housing and treatment in 

the event of illness. As far as minors are concerned, maintenance 

also includes the necessary costs of primary education 

for the person receiving the maintenance and to provide 

that person with some honest trade, art or profession 

appropriate to his or her sex and personal circumstances”. 

In the case of divorce, the general principle established 

in article 302 should apply: “The spouses must provide 

alimony for each other; the law will determine when this 

obligation continues to exist in cases of divorce and other 

cases stated in the law itself”. 

Article 288 states that in cases of necessary divorce, the 

guilty party may be ordered to pay for alimony to the innocent 

spouse and even in cases of divorce by mutual 

consent, the former wife may receive alimony for the 

same length of time as the duration of the marriage, 

provided that she does not have sufficient income or does 

not find another partner. The former husband has the 

same right, but he must prove that he is unable to work 

and lacks sufficient income. 

3.7. Non-marital joint property (homosexual or heterosexual) 

or marriage between homosexuals 

3.7.1. Cohabitation without marriage 

This has been established, since our civil law attaches 

particular importance to the institution of marriage. Proof 

of that is the complex solemnity of the requirements for 

its celebration (articles 97-113 of the CCFD) and in the 

inclusion of basic principles governing the origin and stable 

development of the family (4th article of the PCUSM; 

articles 162, 163, 164, 168 of the CCFD; article 940 of 

the Code of Civil Procedure of the Federal District). 

In the philosophical dogma relating to this context, it is 

clear that the legislator attaches small importance to other 

types of institutions that in some way differ from the 

legal formality of the institution of marriage. This is the 

case, in fact, with relationships occurring between unmarried 

people. What in ordinary language is known as a 

“unión libre” (free relationship) is referred to as “concubinato” 

(cohabitation) in our civil law. 

Nevertheless, from the social point of view, free relationships 

are nowadays common either for reasons of mu- 

5 FERNANDO ANTONIO CÁRDENAS GONZÁLEZ, „Autorización judicial 

para contratar entre cónyuges“ (Judicial authorisation to make 

agreements between spouses), in escribano, the official journal of the 

ANNM (Mexican Association of Notaries), AC., no. 28, Mexico, 

2003, page 22.


tual conviction – deriving from a different approach to life 

– or for reasons imposed by present-day social and financial 

realities. In the light of this, the legislator has been 

obliged to deal with the problem in one way or another. 

Most of the civil legal systems in the Republic do not 

legally acknowledge the possibility of cohabitation. 

However, although they do not specifically acknowledge 

the concept, these legal systems nevertheless allow the 

legal regulation of certain of their consequences. 

Nevertheless, many reforms on this aspect have been 

incorporated into the CCFD and there is even a special 

chapter on the concept (chapter XI, Cohabitation, articles 

291 bis to 291 quintus). This code contemplates rights of 

succession (article 1368, V), maintenance (article 291 

quáter), cases of domestic violence (323 quintus), impediments 

due to kinship by marriage (294), the possibility 

of adoption (391), creation of family property (article 

724) and even presumptions of law on filiation (383). 

In the rest of the Republic, the civil codes of the states 

of Baja California Sur, Guerrero and the Federal Code of 

Hidalgo state that cohabitation is the source of the obligation 

to provide alimony and the civil codes of Tabasco, 

Tlaxcala and the Federal Code of Zacatecas establish 

equality between spouses and cohabitants with regard to 

this obligation. 

Some federal states establish other requirements for 

this obligation to provide alimony to exist: the CCFD requires 

five years' cohabitation, that there must have been 

children and that neither of the cohabitants have married 

a third party. The obligation is invalid if there is more 

than one cohabitant (the civil codes of Chihuahua, Morelos, 

Sonora and Yucatán coincide on this point). Articles 

241 and 242 section II of the Federal Code of Zacatecas 

also require that the union should have lasted more than 

five years. Nevertheless, the Civil Code of Chiapas states 

that cohabitation must have taken place for only three 

years, that the beneficiary has an honest lifestyle and that 

both cohabitants have remained unmarried. It also specifies 

that if the male is disabled and has no assets for his 

subsistence, he may receive alimony from the female. 

The civil codes of Tamaulipas and Veracruz coincide in 

the requirement that the cohabitants should have lived together 

as a couple for only three years – or less if there 

are any children -, provided that they do not marry a third 

party. The Civil Code of Querétaro states that the obligation 

to provide alimony continues to exist throughout the 

duration of the cohabitation and may even be prolonged, 

when cohabitation has ended, for a period equal to its duration, 

provided that the person receiving alimony has no 

other partner and lives honestly. 

3.7.2. Homosexual couples 

The laws of Mexico do not recognise homosexual couples. 

3.8. Children 

Representation of children by their parents. In Mexico, 

children are subject to parental authority up to the 

age of 18. The parents, in fact, are the minor's legitimate 

representatives and possess the legal right to manage 

their assets and represent the children in court. However, 

they can only alienate or encumber immovable property 

and valuables in cases of absolute need or clear benefit 

and with the prior authorisation of the judge (articles 425- 

442). Such permission is processed in voluntary jurisdiction 

proceedings. 

To date, very few civil codes in the Republic contain 

specific titles or provisions relating to childhood or minority, 

although the following civil codes do contain such 

provisions: Guerrero (article 35), Jalisco (article 567 et 

seqq.), Quintana Roo (article 984 et seqq.), Tabasco (article 

404 et seqq.) and Tlaxcala (article 247 et seqq.). 

At the federal level there is a Ley para la Protección de 

los Derechos de Niñas, Niños y Adolescentes (Law for 

the Protection of the Rights of Girls, Boys and Adolescents) 

that was passed by President Zedillo in 1999. Zacatecas, 

the Federal District and Veracruz also have specific 

laws on these matters. 

3.9. Power to provide for one's own disability 

This concept does not yet exist in Mexico, although 

certain excellent case-law studies have been carried out 

on this matter. 

4. Law of succession 

4.1. General observations 

In our country there are two types of succession: testate 

and intestate. The first type derives from the making of a 

will (an act that the law describes as highly personal, revocable 

and free). The second type occurs precisely in the 

absence of a last will and testament. The act of making a 

will is individual and therefore joint or reciprocal wills 

are not permitted. There are two ways to inherit: universally, 

in the capacity of heir, and privately in the capacity 

of legatee. 

4.2. Legal succession 

In accordance with the provisions contained in article 

1599 of the CCFD, legal inheritance occurs precisely in 

the following circumstances: 

- When there is no will or the will that was made is void 

or has become invalid; 

- When the testator did not dispose of all his assets; 

- When the condition imposed on the heir is not fulfilled; 

and 

- When the heir dies before the testator, repudiates the 

inheritance or lacks capacity to inherit, if no substitute 

has been appointed. 

The moment when the estate is shared must go back to 

the decease of the author of the will. For that reason, the 

concept known in other legal systems as trust estate does 

not exist in our legal system. In fact, article 1649 of the 

CCFD provides as follows: “Succession occurs at the 

moment of decease of the principal of the estate...”, while 

article 1660 provides as follows: “The effects of acceptance 

or repudiation of the estate are always backdated to 

the date of the decease of the person from whom the estate 

is inherited”. These provisions are repeated in article 

1290 relating to the case of legatees.


4.2.1. Multiple heirs 

The total inheritable estate takes the form of communal 

property in the heirs' favour, which thus remains as an integral 

unit up to the moment when the division must be 

carried out. Therefore, the heirs may in fact dispose of 

their right in the total inheritable estate in abstracto, but 

they cannot materially dispose of the things making up 

the net worth of the estate. 

Thus, article 2047 provides that when the right to an estate 

is assigned, there is an obligation to assume liability 

only in the sole capacity of heir if the things that form part 

of it are not listed or identified. Also, article 2291 warns 

that any successors can only alienate their rights after the 

decease of the person from whom they are inheriting. 

One important restriction nevertheless exists. This relates 

to the right of pre-emption (tanto) that is retained by 

the co-heirs in the case of sale of the rights to inherit. 

Thus, the potential seller must give notice through a notary, 

by judicial means and with two witnesses, of the basis 

on which the sale has been arranged. The co-heirs 

have a term of eight days to assert their right. The penalties 

are serious if this step is omitted because if the sale 

takes place, it will be void. 

4.2.2. Legal heirs 

Who has the right to inherit in legal succession In general, 

the law provides that the descendants, ascendants, 

spouse, collateral relatives within the fourth degree 

and cohabitants will inherit, in that precise order. Only 

in cases where none of the above exist does the department 

of public welfare intervene. 

The civil codes of the states of Guanajuato (article 

2872), Oaxaca (article 1502) and Puebla (article 3360) 

consider collateral relatives up to the sixth degree to be 

legitimate heirs. 

4.2.3. Who inherits in the absence of heirs 

Sometimes the department of public welfare (article 

1636 of the CCFD), other times the State Attorney (article 

1569 of the Civil Code of Veracruz), for example. 

Nevertheless, it is worth pointing out that the civil codes 

of the states of Querétaro (article 1498), Puebla (article 

3361) and Tlaxcala (article 2914) divide up the estate, 

awarding part to the department of public welfare and another 

part to the local university. The civil codes of Guanajuato 

(article 2874) and Zacatecas (article 811) go further 

and institute the local public university as the sole 

heir, without considering the department of public welfare. 

The civil codes of Morelos (article 777), Quintana 

Roo (article 1539) and Sonora (article 1712) institute the 

State as the heir. 

Estado de México institutes the Sistema para el Desarrollo 

Integral de la Familia del Estado de México (System 

for the Integral Development of the Family of Estado de 

México) as successor in the absence of any legitimate heir, 

in accordance with the provisions contained in article 1465. 

4.3. Forced shares and maintenance obligations 

The institution of a forced share in the inheritance (legítima) 

such as it exists, for example, in Spanish law, 

which institutes obligatory heirs in respect of two thirds 

of the estate and only considers the remaining third as being 

freely disposable (articles 806-808 of the Spanish 

Civil Code) does not exist in our legal system. Nevertheless, 

it is true that this system existed in the past in the 

1870 Civil Code. When this legislation was amended in 

1874 the institution of the “legítima” portion of assets 

was abandoned and the system was converted to that of 

the current code, which allows much greater freedom to 

make wills, although, in truth, subject to certain reservations. 

In fact, there is a significant series of restrictions on the 

maintenance that must be assured for minors under the 

age of eighteen; descendants; the surviving spouse when 

he or she is unable to work; ascendants; cohabitants and 

siblings and other collateral family members within the 

fourth degree, in certain cases (article 1368). 

One specific rule governing the analysis of these provisions 

that restrict the freedom to make a will relates to the 

obligation to provide maintenance only in the event that 

there are no relatives to a closer degree or such relatives 

are unable to provide it. Thus, in his or her will, the testator 

must list the persons who, pursuant to this provision, 

have a direct duty to fulfil that obligation due to 

their proximity of kinship. 

It is of interest at this point to refer to the consequences 

of failure to comply with the obligation to provide maintenance. 

The Civil Code states that the last will and testament 

becomes inofficious, and by that it means that the 

will must be reduced precisely by a proportion equal to 

the amount of maintenance not provided. Thus, the person 

omitted in the will only has the right to receive the 

pension that should have been paid to him or her, but the 

will continues to be intact in all other respects in accordance 

with the general principle of law utile per inutile 

non vitiatur (article 2238). 

Providing a framework for all these provisions relating 

to testamentary obligations, article 1376 states that the 

obligation to provide maintenance, although incumbent 

on the principal of the estate, is finally charged to the total 

inheritable estate that is transferred. The only exception 

to this is when the testator specifically charges one 

of the participants with this obligation to provide maintenance 

(article 1376). 

4.4. Wills and contracts on succession 

The next major chapter in our civil law on succession 

relates to the type of will. For this purpose, our Civil 

Code describes a will as “a highly personal, revocable, 

free act whereby a person with capacity disposes of his 

or her assets and rights and declares or fulfils duties for 

after his or her decease” (article 1295). 

The first section, which relates to wills in general, contains 

provisions regarding the manner in which wills are 

made, imposing, for example, the obligation that the act 

of making a will must be a strictly unilateral act. Thus, 

the making of reciprocal wills, i.e. where two people each 

make a last will and testament in favour of the other or 

both persons make wills in favour of a third person, is 

prohibited (article 1296).


The capacity to make a will is presumed. That, in effect, 

is the formulation contained in article 1305, although 

in a negative sense. Article 1306 provides as follows: 

“The following persons do not have the capacity to 

make a will: “I. Minors, either male or female, under the 

age of sixteen; and II. Persons who are habitually or temporarily 

not of sound mind”. This provision therefore repeals 

the general rule contained in article 646, that establishes 

a legal age of 18 or over. 

We should state that only the civil codes of the states of 

Michoacán (article 1171), Puebla (article 3065), Quintana 

Roo (article 1252), Tabasco (article 1386) and Tlaxcala 

(article 2641) state that the legal age to make a will is 14, 

since the rest of the country's civil legislation (for example, 

article 1306 of the CCFD and article 1239 of the Civil 

Code of Veracruz) require the testator to be 16 or over. 

4.5. Types of will 

Our Civil Code contemplates a great many types of 

will. In principle however, wills can be classified under 

just two overall headings, i.e.: ordinary and special. Ordinary 

wills under our law include open public wills, 

closed wills, simplified wills and holograph wills (article 

1500). Special wills include private wills, military wills, 

maritime wills and wills made overseas (article 1501). 

We should also note that the codes of Aguascalientes 

(articles 1411-1 413), Coahuila (articles 972-974), Chihuahua 

(article 1406), Oaxaca (articles 1403-1405), 

Puebla (articles 3259-3261) and Tlaxcala (articles 2803- 

2807) do not list holograph wills and that, incidentally, 

the code of Nayarit does not contemplate wills made 

overseas or military wills or maritime wills. The new 

Civil Code of the State of Mexico now only contemplates 

open public wills, simplified public wills, military wills, 

maritime wills and wills made overseas (articles 6,120- 

6,121). The Civil Code of Veracruz (article 1454) refers 

to what are known in other legal systems as “closed public 

wills” as “closed notarial wills” and also calls holographs 

“autographs” (article 1483). However, both changes 

are solely of form. The Civil Code of Jalisco already 

contemplates electronic wills (article 2848) and the civil 

codes of Guerrero and Querétaro allow wills made in the 

air (articles 1459 and 1381, respectively). The Civil Code 

of Guerrero even authorises wills made in spacecraft 

“from lift-off onwards” (ditto, 1381). 

4.5.1. Open public wills 

These wills are classified as “public” and “open” due to 

the fact that they are made before an attester, in other 

words, a notary public, and are therefore necessarily entered 

in the notarial records. Until recently, they were 

drafted, signed and attested in the presence of three attesting 

witnesses. 

Most of the codes in the Republic continue to require 

the formality of three attesting witnesses when executing 

an open public will. Exceptions to this are the civil 

codes of the states of Nayarit (article 2647), the Federal 

District (article 1513), Jalisco (article 2842), Baja California 

Sur (article 1418), Veracruz (article 1444), Querétaro 

(article 1388), Colima (article 1407) and Sonora (article 

1589), which establish that two witnesses may attend 

at the request of the testator or the notary. The requirement 

is merely optional. In practice the act takes place 

without witnesses and, in fact, the definition of a will in 

the dogma has been reduced to the following: “An open 

public will is a will that is made before a notary”, thus superseding 

the previous formula which stated: “... before a 

notary and three witnesses” (article 1511 of the CCFD 

and article 1444 of the Civil Code of Veracruz). The Civil 

Code of Chihuahua, with amendments from December 

2002, still retains the three witnesses (article 1415). 

This type of will requires close involvement and supervision 

by the notary, making him responsible at all times 

for drafting the clauses, ensuring that it conforms strictly 

to its author's wishes, reading out the will immediately 

after it has been made, the setting the respective signatures 

and the final witnessing of the act. 

Concrete provisions applying very specifically then 

govern the conduct of the notary responsible: articles 

1514 and 1516-1518 govern exceptional circumstances 

such as when the testator cannot or does not know how to 

sign, when he or she is completely deaf or blind or does 

not know the local language. Article 1519 contemplates 

the principles of concentrated single act and attesting to 

full compliance with the formalities, subject to the penalties 

(article 1520) of invalidity of the will and liability for 

the notary. 

4.5.2. Closed public wills 

Unlike open public wills, this type of will is not entered 

in any official record and for that reason is considered as 

“closed”. Nevertheless, it is still public because it involves 

the notary and witnesses. 

Wills of this type can be written by the testator, but also 

by another person, and can even be written on ordinary 

paper. These documents are characterised by the fact that, 

immediately after they have been drafted, paraphed and 

signed, they must be wrapped in a sealed paper. It must 

then be exhibited to the notary in the presence of three 

witnesses, declaring that the paper contains his or her last 

will and testament. This means that not even the attester 

can know the terms of the will. The witnesses are also unable 

to discover the terms of the will and the only way 

that an outside party can possibly discover them is if another 

person must sign at the request of the author if the 

author cannot or does not know how to sign and it is clear 

that this person must enjoy the author's full confidence. 

This type of will therefore completely fulfils the requirement 

for confidentiality while still being formally submitted 

to a notary. 

The notary, in fact, attests to the execution of the will 

and must also ensure that all the formalities inherent in 

acts of this type are fulfilled. In accordance with the provisions 

contained in article 1526, the notary must also attest 

to the cover itself of the document and it must then 

be signed by the testator, witnesses and the notary. 

The next step consists of the physical delivery of the respective 

document by the testator to the notary and the notary 

must then enter in his records the date on which the 

will was witnessed by him and returned to its author. This


document may be kept by the testator himself, given to a 

person he trusts or deposited in the judicial archive. 

The notaries are responsible for the formalities to be 

observed with regard to wills and they are subject to serious 

penalties for failing to observe those formalities. 

Articles 1520 and 1534 of the CCFD state that failure to 

carry out any formality will mean that the will is invalid 

and the notary must assume full liability for any loss and 

damage and, in addition, will be penalised by loss of his 

office. Even the omission of the term “autorizado” (witnessed) 

on the notary's record – an irregularity which 

does not affect the consequences of the act – will be penalised 

by six months' suspension. 

Other civil codes, such as those of Guanajuato (articles 

2789 and 2775) and Quintana Roo (articles 1464 and 

1451) penalise the notary by loss of his office. Others, 

such as those of Baja California Sur (articles 1438 and 

1424), Jalisco (article 2857), Nayarit (articles 2668 and 

2654) and Querétaro (articles 1413 and 1397) make the 

notary liable only for loss and damage, in addition to an 

appropriate administrative penalty (this latter only in the 

case of Nayarit), but do not establish loss of the post (although 

it is true that they contemplate a penalty of six 

months' suspension in a number of circumstances). 

The Civil Code of the state of Michoacán (article 1384) 

only orders the payment of loss and damage and does not 

contemplate any suspension or loss of office. The states 

of Veracruz, México and Chihuahua recently repealed articles 

that provided severe penalties on these matters. 

4.5.3. Simplified public wills 

Article 1549 bis, relating to simplified public wills, was 

added to the CCFD. This particular type of will is defined 

as follows: 

A simplified public will is a will relating to immovable 

property that is used or that is to be used for housing by 

the person acquiring it that is executed before a notary 

in the same deed as that which records its acquisition 

or a deed that records the regularisation of an immovable 

property by the authorities of the Federal District or any 

office or entity of the Federal Public Administration or in 

a subsequent act. 

In accordance with that same provision, the requirement 

to be fulfilled as far as the amount is concerned is 

that the value of the property must not exceed $ 314,000 

Mexican pesos (approximately USD 35,000) or, in other 

words, the equivalent to 25 times the minimum salary in 

force in the Federal District, stated as a yearly amount. 

Simplified public wills are contemplated in the CCFD 

(article 1549 bis) and have also been included in the civil 

codes of Baja California Sur (article 1454), Chihuahua 

(articles 1406 and 1455), Colima (articles 871 bis and 

1446 bis), Estado de México (article 6,136), Nayarit (article 

2683 bis), Nuevo León (article 1446 bis), Querétaro 

(article 1460 bis) and Sonora (article 1625 bis). The few 

variations among them relate mainly to the value of the 

property. 

Nevertheless, this type of will is a complete novelty 

that is a clear departure from the traditional concept of a 

will. We have already seen how the will is executed in the 

deed of acquisition or regularisation itself, as though it 

were one more clause of that deed. It should also be noted 

that such wills can also be executed collectively, in 

other words each co-owner – as appropriate – can institute 

legatees with regard to his or her portion. Having 

said that, there is also no impediment to allowing the 

spouse to take part in the act for the relevant portion, thus 

repealing the prohibitive provision contained in article 

1296 discussed above. 

Furthermore, it is expressly established that legatees 

can demand that the property be handed over directly, 

without the formality of an inventory and without giving 

a guarantee. 

The notarised title is issued in accordance with a specific 

procedure established in article 876 bis inserted in 

the Code of Civil Procedure of the Federal District. By 

virtue of this rule, a certified copy of the testator's death 

certificate and the transcript of the simplified public will 

must be exhibited to the notary. The notary will then publish 

the particulars of the case in the national newspapers 

and will also obtain – from different offices – records relating 

to the existence of other wills. If there is no opposition, 

the notary will issue the respective deed and order 

its entry at the Public Land Registry. 

The final intention must be summarised in the fact that 

this type of simplified will can solve, quickly and economically, 

the serious problems faced in this country regarding 

titles and regularisation of immovable properties, 

particularly in view of the efforts made by the offices responsible 

to solve the problem in administrative procedures. 

4.5.4. Wills made overseas 

These wills must comply with the form required by local 

law and the Mexican officials of the official representation 

in that place will act as notaries or receivers of the 

will. These officials are under an obligation to send a certified 

copy to the Secretaría de Relaciones Exteriores 

(SRE) (Secretariat for Foreign Affairs = Foreign 

Ministry), where the procedure of drafting a certificate of 

delivery will be carried out and the news of the testator's 

decease will be published when it has occurred. 

4.5.5. Joint wills 

In accordance with an express provision in our Civil 

Code (article 1296) it is clearly established that two or 

more people cannot make a will in the same document. 

This, naturally, is a clear consequence of the highly 

personal aspect stated the definition of a will itself (article 

1295). 

This prohibition on making joint wills is strict because 

such a will cannot be made under any circumstances either 

in favour of a third party or even for the reciprocal 

benefit of the persons concerned. This also includes a 

prohibition on a spouse making a will in favour of the 

other spouse and vice versa. Obviously this can only occur 

if each spouse makes a will individually, but in individual, 

separate acts.


In any case, it is clear that an important exception to 

this, expressly contemplated in our legislation by virtue 

of a subsequent reform, is contained in article 1549 bis, 

which is discussed above (simplified public wills). 

4.6. Succession through substitution by a trustee 

Even though we continue to be guided by the principle 

of freedom of last will and testament (articles 1295 and 

1344). It is clear in any case that the philosophy of the 

Civil Code retains a framework of restrictions that limit 

the testator's freedom in certain circumstances. 

These restrictions can be perceived very clearly in the 

case of conservation of the freedom to make a will of the 

heirs themselves. Thus, substitutions of heirs or legatees 

involving more than one generation, clauses that prohibit 

certain assets from being alienated, fiduciary dispositions 

and conditions that are clearly illegal are prohibited. 

For example, it is expressly provided that a condition imposed 

on the heir to marry or not marry will be considered 

as not having been included. 

4.7. Executorship 

In legitimate succession, the executor (albacea) of the 

estate is directly appointed by the judge – or by the notary 

-, at a meeting of all the heirs (articles 805 of the Code 

of Civil Procedure of the Federal District and 1862 of the 

CCFD). This meeting is only omitted if there is a single 

heir or if the interested parties cast their vote in the response 

to the call. In accordance with the specific list 

provided in the Code, the executor may be universal, special, 

joint and general. 

Our Civil Code also refers to other representatives in 

succession, i.e. the executor (ejecutor) (general or special, 

article 1702). This executor confines his activities to 

the sums or things that have been placed under his responsibility 

in the total net worth of the total inheritable 

estate. 

Article 1728 refers to the concept of the auditor (inventor) 

and his duties are confined to supervising the office 

of the executor. 

5. Company Law 

There are two types of companies in Mexican civil law: 

the Asociación Civil (Civil Association) and the Sociedad 

Civil (Civil Company). 

5.1. The civil association 

In accordance with article 2670, the Civil Association 

is defined as follows: “When a number of individuals 

agreed to meet, in a way that is not entirely temporary, to 

achieve a common purpose that is not prohibited by law 

and is not of a predominantly financial nature, they constitute 

an association”. 

The agreement must be made in writing and must contain 

the bylaws of the association, which are required to 

be entered on the public register. The notary's involvement 

often extends to drafting the minutes of the general 

meeting at which the association is founded and the bylaws 

themselves, as well as the respective notarisation of 

the act. 

In view of the philanthropic nature of associations of 

this type (the law states that they must not be of a predominantly 

financial nature), in the event of dissolution, 

the assets will be put to a particular use, according to 

what is provided by the statutes or according to what is 

decided by the general meeting itself. However, the powers 

of the general meeting are restricted solely to allocating 

the equivalent of their contributions to the members 

of the association. 

What happens to the other assets The final part of article 

2686 of the law states that they must be applied to 

another association, provided that the purpose of that association 

is similar to the association that is extinguished. 

5.2. The civil company 

The second type of corporate body governed by our 

law is the Civil Company. Article 2688 of the CCFD 

states as follows: “Through the incorporation papers, the 

members mutually agree to combine their resources or 

their efforts to achieve a common purpose, of a predominantly 

financial nature, but which does not consist of 

commercial speculation”. 

As we can see, the difference between civil associations 

and civil companies in Mexican law basically relates 

to their purpose, since companies have a “predominantly 

financial” purpose. Besides that important difference, 

companies have company capital, whereas associations 

have assets. This means that companies have equity 

participations and can distribute earnings, which is not 

the case with associations. Also, in the case of companies, 

it is possible for members to assign their equity participations, 

whereas in associations, the rights held are 

highly personal. Finally, in the case of companies, directors 

have unlimited joint and several liability, which is 

not the case in associations. 6 

The incorporation papers are normally made in writing, 

but the involvement of the notary is required if assets that 

require it are being transferred. It must also be entered on 

the register in order for it to take effect against third parties. 

Article 2693 states the requirements for the contents 

of the incorporation papers. 

It is important to clarify that the acquisition of real estate 

by these companies must comply with the provisions 

contained in article 27, section III of the PCUSM, which 

contains the following restriction: 

Public or private charitable institutions whose purpose 

is to help those in need, scientific research, dissemination 

of teaching, reciprocal aid of their members or any other 

lawful purpose may not acquire more real estate than is 

absolutely necessary for their object and that is immediately 

or directly intended for it, subject to the regulations 

contained in the law. 

The obligation of members in companies of this type 

includes a subsidiary guarantee for the executive members' 

unlimited joint and several liability; other members 

only cooperate through their contributions, unless otherwise 

provided in the incorporation papers. 

6 MIGUEL ÁNGEL ZAMORA Y VALENCIA, Contratos Civiles (Civil Contracts), 

Porrúa, México, 1998, pages 238-239.


Finally, it is important to clarify that in Mexico the incorporation 

of any type of company invariably requires a 

permit to reserve the name with the SRE (foreign ministry), 

which keeps a computer record of these names and 

also of participation by foreign citizens, in accordance 

with the provisions contained in articles 15 and 16 of the 

Law on Foreign Investment. 

5.3. Capital associations and companies 

In Mexico there is a special law dating from 1934 (the 

Ley General de Sociedades Mercantiles (General Law 

on Commercial Companies). This law recognises various 

types of company, but only two are the most common: 

limited liability companies and joint stock companies. In 

practice, the other types of company are practically nonexistent 

for various reasons. 

5.3.1. Limited liability companies (SRL) 

In limited liability companies the members only agree 

to pay their contributions. Mexican law does not require 

a minimum number of persons and only states that they 

must be formed by “one or more members” although, at 

the other extreme, it limits their number to no more than 

25. In accordance with that, limited liability companies 

frequently bear the name of one or more members although 

the law, furthermore, allows them to be established 

under one name or under a corporate name. 

In any case, both names must be immediately followed 

by the literal expression of the technical nature of the 

company or its abbreviation – “SRL”; otherwise, the 

members will have secondary, limited, joint and several 

liability for all corporate obligations. If the name of the 

company includes the name of a person outside the company, 

that person is obliged to assume liability for the 

company's operations up to the amount of the largest contribution 

in the company. 

In Mexico it is customary to add the expression “y 

compañía” (and company) in the case of a corporate 

name if the name does not state the names of all the members. 

The expression “sucesores” (heirs) is also common. 

It does not necessarily mean that the original member has 

died, but only that he has left the company or even that 

one company has been transferred to another. 

In accordance with the law, the capital must not be under 

$ 5,000 pesos (approximately USD 500) and must be 

fully subscribed. At least 50% of its value must be paid in. 

Quid iuris with regard to the form of the company As 

a general rule, all companies must be incorporated before 

a notary and all amendments of their Articles of Association 

must also be executed before a notary. 

Finally, it is important to clarify, as was stated above in 

the case of civil associations and companies, that this 

type of commercial company also invariably requires a 

permit from the SRE to reserve the name and for control 

of possible participation by foreign citizens. 

5.3.2. Joint stock companies (SA) 

The joint stock company is the most common legal 

form in practice as far as commercial companies are concerned. 

This company is highly versatile and has an excellent 

image in corporate and advertising terms. Article 

87 of the aforesaid General Law on Commercial Companies 

states as follows: “A joint stock company is a company 

that exists under a name and is made up solely of 

shareholders whose obligation is confined to paying in 

their shares”. The minimum capital of a joint stock company 

must be $ 50,000 pesos, or approximately USD 

5,000. 

The law expressly states that joint stock companies 

must be incorporated under the technical form of a 

“name”. These names often take on an air of fantasy since 

their form is entirely unrestricted. In any case, the law 

prevents the risk of homonyms through the bureaucratic 

control exercised by the SRE, referred to above. Whatever 

the name, in companies of this type it must invariably 

be followed by the words “Sociedad Anónima” (joint 

stock company) or their abbreviation, “S.A.”. 

What is the legal form of a joint stock company As is 

stated above, commercial companies must be incorporated 

before a notary, but in this particular case they 

may also be incorporated by public subscription. However, 

this form of incorporation is not common. 

In practice, the notary himself drafts the minutes of the 

general meeting to incorporate the company and the Articles 

of Association. Articles 95 and 101 state that contributions 

other than those in cash will be legalized when 

the minutes of the meeting to incorporate the company 

are entered in a record and that, when the incorporation 

of the company has been approved, the minutes and the 

Articles of Association must be entered in a record and 

registered. However, the text of article 90 requires appearance 

before a notary. 

5.4. Cooperative companies (SC) 

In Mexico, cooperative companies are subject to a special 

law that was passed in 1994. The purpose of cooperative 

companies is focused on social organisation made 

up of individuals on the basis of common interests and on 

the principles of solidarity, their own efforts and mutual 

aid, for the purpose of meeting individual and collective 

needs through the performance of the economic activities 

of production, distribution and consumption of goods and 

services. 

Cooperative companies are formed by a minimum of 

five members and their financial structure is that of variable 

capital. As far as the necessary formalities are concerned, 

article 12 of the law only contemplates the need 

for ratification of signatures before a public authority, 

which includes notaries. When the Memorandum of Association 

has been signed, the cooperative company acquires 

legal status and has assets. This deed must be entered 

on the public commercial register. 

As far as their system for liability is concerned, companies 

of this type may choose limited liability or members' 

supplemented liability. In the first case, the members' 

liability is limited solely to the payment of certificates 

of contribution; in the second case the members 

must assume equal liability for the company's operations,


according to the amount previously established. It is important 

to clarify that foreign citizens cannot discharge 

executive or administrative posts in companies of this 

type (article 7). 

Finally, cooperative companies may be engaged in consumption 

or production of goods or services or savings 

and loans. This latter type of company is subject in turn 

to a specific law (the Ley de Ahorro y Crédito Popular – 

Law on Popular Savings and Credit). 

5.5. Foundations 

The system governing foundations is contained in what 

is known as the Ley de Instituciones de Asistencia Privada 

(Law on Private Assistance Institutions) for the 

Federal District which dates from 1998. This law provides 

that there may only be two types of private assistance 

institutions: “foundations” or “associations”. Article 

7 provides that the name or corporate name must always 

be followed by the words “Institución de Asistencia Privada” 

(or IAP) (Private Assistance Institution). 

In general, the creation of institutions of this type obeys 

the general rules provided in civil legislation. However, 

there are certain provisions that are particularly applicable. 

One of the most noteworthy of these is the fact that 

foundations (either of a temporary or permanent nature) 

may be created by a last will and testament. In this particular 

case we should point out that lack of capacity to 

inherit (articles 1313, section I and 1314 of the CCFD) 

cannot be asserted. In fact, effects of form cannot be invoked 

in general, thus protecting the intentions and wishes 

of the author and, in particular, his spirit of altruism. 

5.6. Commercial registration and representation 

New regulations on Public Commercial Registration 

were passed recently (24 October 2003), establishing 

what is known as the Sistema Integral de Gestión Registral 

(SIGER) (Integrated Registration Management System). 

This system includes electronic mercantile folios in 

accordance with pre-coded forms created by the Secretariat 

for the Economy. A detailed registration procedure is 

created for the capture, storage, custody, security, consultation, 

reproduction, verification, administration and 

transfer of registration data through one of two reception 

methods: electronic (where the notary or broker uses the 

SIGER system) and physical (through the relevant reception 

window). When reception has been verified, a record 

is sent to the notary or broker containing the sequential 

number and date and time when the form was received in 

order to establish the prevalence of rights on one or more 

acts relating to the same folio. 

The electronic signature used in the processing of this 

data is the advanced or trustworthy signature, which fulfils 

the necessary requirements of attributability and confidentiality. 

6. Private international law 

6.1. Principle: Application of Mexican law 

The national rules relating to this matter are dispersed. 

Article 121, section II of the PCUSM establishes the lex 

rei sitae rule beyond any doubt, indicating that movable 

or immovable property will be governed by the law of the 

place where they are located. Also, other principal traces 

may be found in articles 12-15, “Disposiciones Preliminares” 

(Preliminary Provisions) of the Civil Code. In 

general, it is established – as is stated in article 12 of the 

CCFD – that “The laws for the Federal District will apply 

to all persons located in the territory of the Federal 

District, whether they are nationals or foreign citizens”. 

The CCFD adds that it also applies to acts and events 

occurring in the territory, except “when these envisage 

the application of foreign law and also with the exception 

of what is provided in treaties and conventions to which 

Mexico is party”. 

In turn, article 13 of the CCFD also establishes the lex 

rei sitae rule, establishing a number of provisions on the 

acknowledgement of the legal situation in other federal 

states of the Republic relating to the status and capacity 

of persons, real rights on property, leases and the legal 

form of acts, obeying the criteria that law of the place 

where they take place must apply (locus regit actum). 

Finally, as far as the legal effects of acts and contracts 

are concerned, the lex loci executionis rule is applied, 

since it applies to the law of the place of execution. 

Foreign law must be applied in the way in which it 

would be applied by the relevant foreign judge, taking 

substantive law as a general rule, except when rules of 

conflict that refer to another legal system are to be applied. 

In any case, if Mexican domestic law does not contemplate 

foreign legal institutions, the law authorises the 

application of similar institutions or proceedings. It also 

contains rules on prior, preliminary or incidental matters 

and, finally, the necessary harmonious application of different 

laws, taking into account “the requirements of equity 

in each specific case”. 

Foreign law will not be applied when there is a fraudulent 

intention to avoid the application of domestic law or 

when the foreign law is contrary to the Mexican legal 

system. Finally, articles 284 bis of the Code of Practice of 

the Federal District and 86 bis of the Federal Code of 

Civil Procedure must be mentioned, since they also refer 

to the application of foreign law and the powers of local 

judges to collect the necessary information. 

6.2. Other provisions 

Outside of this general framework, it is possible to encounter 

other isolated provisions, such as in the following 

cases: 

6.2.1. Wills (articles 1593-1598 of the CCFD) 

This rule provides that a will made in a foreign country 

will be fully effective in Mexico provided that it has been 

validly executed in the country in question. 

“Secretaries of Mexican legations, Consuls and Vice- 

Consuls may act as notaries or receivers of wills for Mexican 

citizens overseas in cases where the dispositions of 

last wills and testaments must be enforced in the Federal 

District” (article 1594).


For intestate successions, in general the rule of “lex rei 

sitae” applies to immovables as well as to movables. 

Hoever, Puebla and San Luis Potosí apply the law of domicile 

(in the continental sense) to movables (and lex rei 

sitae only for immovables), Quintana Roo applies the law 

of domicile to both immovables and movables. 

6.2.2. Societies or associations (article 2736 of the 

CCFD) 

The rules of foreign private corporate bodies are respected 

in accordance with the law applicable to the act 

of their incorporation (locus regit actum rule). The recognition 

afforded by Mexican domestic law to the capacity 

of the foreign corporate body cannot exceed the recognition 

afforded by the country of origin and it is presumed 

that the representative of that foreign corporate 

body is, naturally, empowered to take part in any act in 

which possible liability may be demanded. 

6.2.3. Adoption (articles 410-E and 410-F of the 

CCFD) 

The law distinguishes between two types of adoptions: 

- adoption “instigated by citizens of another country with 

their habitual residence outside Mexican territory” is 

referred to as international adoption; 

- whereas adoption “instigated by citizens of another 

country with their permanent residence in Mexican territory” 

is referred to as adoption by foreign citizens. 

In the first of these cases, the adoption is governed by 

the international treaties signed by Mexico. In the second 

case, the provisions of the CCFD naturally apply. Finally, 

article 410-F adds that, when circumstances are equal, 

Mexican citizens will be given preference over foreign 

citizens. 

The CCFD establishes a minimum age of 25 to adopt 

and a minimum difference of 17 years between the person 

adopting and the person adopted (article 390). However, 

this provision is only included in the civil codes of 

ten federal states in the Republic. The remainder, i.e. 22 

civil codes, establish different ages ranging from 18 to 30 

for the capacity to adopt and from 10 to 20 with regard to 

the necessary age difference between the person adopting 

and the person adopted. 

6.2.4. Capacity of foreign citizens 

In accordance with the provisions contained in articles 

1327 and 1328 of the CCFD, foreign individuals and corporate 

bodies have, in general, capacity to acquire property 

through either testate or intestate succession, though 

always in accordance with the provisions contained in the 

PCUSM. There is only one restriction on this: possible 

lack of international reciprocity. 

6.2.5. Marital status acquired overseas 

The law expressly provides that the records submitted 

by the interested parties, in accordance with what is provided 

in the Code of Civil Procedure, will be sufficient in 

order to establish marital status acquired by Mexican citizens 

located overseas, provided that the act is recorded 

at the relevant office (article 51 of the CCFD). 

6.2.6. Credit instruments issued by foreign citizens 

Articles 252-258 of the General Law on Credit Instruments 

and Operations state that the capacity to issue credit 

instruments overseas or carry out any of the acts contained 

therein will be established in accordance with the 

law of the country in which the document is issued or the 

act is carried out and that Mexican law on capacity will 

apply. That same law will govern the capacity of foreign 

citizens to issue instruments or carry out any of the acts 

contained therein in the territory of the Republic. 

6.3. Documents from foreign countries 

Articles 139-140 of the notarial law of the Federal District 

contemplate the protocolisation of documents of this 

type once they have been legalized or stamped with the 

apostille and translated, as appropriate, at the request of 

the interested party and without any need for a court order, 

except in the case of powers of attorney executed before 

Mexican consuls. 

Article 140 of the notarial law of the Federal District 

states as follows: “Powers of attorney executed outside of 

the Republic, when they have been legalized or stamped 

with the apostille and translated, as appropriate, by an expert, 

must be protocolised in order to take effect pursuant 

to the law. This does not apply to powers of attorney executed 

before Mexican consuls.” 

Article 121 of the PCUSM, referred to above, is applicable 

at an inter-state level and articles 130-131 of the 

Federal Code of Civil Procedure also reproduce these 

same provisions. 

The states of Aguascalientes, Baja California, Campeche, 

Guerrero, Nuevo León, Oaxaca (except in powers 

of attorney), Tabasco, Tamaulipas, Tlaxcala and Yucatán 

(10 federal states) require an express court order for 

protocolisation. 

At the other extreme, many states (Baja California Sur, 

Chiapas, Chihuahua, Durango, Estado de México, Hidalgo, 

Morelos, Nayarit, Veracruz, Quintana Roo, San Luis 

Potosí, Sinaloa and Zacatecas) no longer require any 

court order whatsoever and only contemplate entry in 

record after legalization before the notary appointed by the 

parties and translation by an official expert, as appropriate. 

In several cases (for example, the Federal District, Estado 

de México, Nayarit, Quintana Roo and Sinaloa) it is 

expressly stated that protocolisation may take place without 

any need for a court order or judicial writ. Estado 

de México adds that such protocolisation will take place 

by means of the statement by the notary contained in the 

instrument that it does not contain any provisions contrary 

to law, morality or good conduct. For its part, the notarial 

law of the state of Jalisco authorises the issue of 

wills in two languages in parallel columns (article 127). 

To conclude, the current trend with regard to the problem 

of validity of documents from foreign countries appears 

to point in the direction of abandoning the require-


ment for a court order for their protocolisation and confining 

the need for such an act only to cases in which the 

documents in question do not contain an apostille or a 

consular certificate. Furthermore, a trend appears to be 

starting whereby the notary himself can carry out the protocolisation 

if he knows the language (or any other dulyidentified 

person, who need not be an official expert). 

Naturally, the final purpose appears to be to harmonise 

these matters at national level with the international treaties 

and conventions that Mexico has signed. 

7. Tax Law 

7.1. Transfers of immovable property 

The notary is responsible for the payment of the taxes 

deriving from the operation in question in accordance 

with the provisions contained in the Ley del Impuesto 

Sobre la Renta (Income Tax Law) and articles 14 and 14- 

A of the Código Fiscal de la Federación (Federal Tax 

Code). 

The income is the total amount of the consideration obtained 

precisely from alienation. If there is no consideration, 

that amount will be established at an appraisal value. 

Exceptions to this rule on income from alienation 

consist of the hypotheses of transfer of property mortis 

causa, donation or merger of companies and alienation of 

certain credit instruments that have given rise to interest. 

The complexity of the procedure for calculating the 

annual tax depends on the transaction in question. However, 

it may be said, in brief, that the deductions provided in 

article 148 of the same law must be applied. These deductions 

relate to the updating of the acquisition cost, which 

will never be less than 10% of the total amount of the 

transaction. Investments in constructions, improvements 

and extensions and even notarial costs, taxes, fees and appraisals, 

commissions and agency fees can also be added. 

When these deductions have been applied, the resulting 

difference is referred to as the profit. Nevertheless, this 

profit must then be divided by the number of years between 

the beginning and the end of the transaction, in 

other words the acquisition date and the actual date of alienation, 

which period must not exceed twenty years. 

The notary makes provisional payments for the alienation 

of immovable property in accordance with a pre-established 

tariff that is the result of dividing the profit by 

the number of years between the acquisition and the alienation. 

The result is multiplied by the number of years. 

The notary has a term of fifteen days from the date of 

the signature in which to make this provisional payment, 

always under his liability. 

7.2. Income from acquisition of assets 

This income is provided in article 155 of the Income 

Tax Law. Deductions may also be made in this case, in 

accordance with the provisions contained in article 156, 

but it should be made clear that the provisional payment 

amounts to 20% of the income received. The notary also 

has a term of fifteen days in which to make this provisional 

payment, always under his liability. 

7.3. Value Added Tax (IVA) 

This payment derives from transactions considered to 

constitute alienation (articles 14 and 14-A of the Federal 

Tax Code). 

Exceptions consist of transfers of property due to decease 

and donations. The tax is also not payable when only 

the land or constructions intended for housing are alienated, 

except in the case of hotels (article 9 of the Value 

Added Tax Law). 

The code considers that the moment of alienation must 

be considered to be the moment when the considerations 

are actually collected. From that point onwards, there is a 

term of fifteen days in which to pay the tax. This tax is 

calculated by applying a rate of 15% to those values and 

is payable by the taxpayer, who transfers it to each separate 

person acquiring the assets or enjoyment of the assets 

or the services. 

7.4. Transfer of ownership 

Locally, the tax known as transfer of ownership is 

payable for all acts in which the ownership of immovable 

property is transferred, including due to decease and contribution 

to companies, transfer of real rights, awards, 

positive prescriptions, exchanges, trusts, division of coownership 

and dissolution of property held jointly by 

spouses – on the surplus part. 

For calculation of this tax, an appraisal value issued by 

a qualified expert is taken as a base. The tariff varies in 

each federal state of the Republic, but ranges from 0.50% 

to 2% of that value. The term for payment of the tax may 

also vary, but the longest term is thirty days. The notary 

assumes joint and several liability with the taxpayer for 

the calculation and payment of the obligation. 

7.5. Entry of documents at the registry 

Finally, fees derive from the entry of documents at the 

Public Land Registry, provided that they contain acts 

relating to immovable property or real rights. The tariffs 

normally vary considerably from state to state, according 

to whether the rates are fixed or whether they are established 

as a percentage or in terms of minimum salaries. 

Minimum and maximum tariffs may also be established. 

7.6. Tax on successions and donations 

In this case, no special taxes are payable and it is therefore 

necessary to resort to the general rule established in 

the above paragraphs. We should clarify that donations 

between spouses or between family members in a straight 

line of descent – with some exceptions – and, in general, 

all other donations are exempt from payment of Income 

Tax, with a maximum limit being established relating to 

the total value thus received in one year (article 109, section 

XIX of the Income Tax Law). 

8. Bibliography 

For a bibliopraphy see page 199.

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