3-4/2005 UINL - Notarius International

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