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Intestacy Laws in Mexico: Probate, Property Regimes, and Their Impact

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Intestacy Laws in Mexico: Probate, Property Regimes, and Their Impact

Antonio Maldonado

Intestacy laws determine how a person's assets and property are distributed after their death if they did not leave a valid will. These laws provide a framework for identifying who the rightful heirs are and what share of the estate they are entitled to receive. Intestacy laws prioritize spouses, children, and other close relatives in a specific hierarchy. The aim is to distribute the assets in a manner that is presumed to protect the closest family members, especially those that may have financially depended on the decedent.

Understanding intestacy laws in Mexico involves more than just knowing the sequence of heirs; it also requires an awareness of the marital property regimes that can shape the outcome of probate proceedings. Whether a marriage is governed by community property or separate property rules can significantly impact asset distribution when a spouse dies without a will.

Intestate Succession in Mexico

Mexico's intestate succession is based on a hierarchy of relatives as outlined in the Civil Code applicable to the decedent’s last domicile. Each of the thirty-one Mexican states and Mexico City has its own Civil Code. The general order prioritizes children, then spouses, parents, and then other relatives. If no relatives can be found, the estate reverts to the government. While there are differences from state to state, the intestacy rules are usually as follows:

  1. The first to inherit are the deceased's children and other direct descendants, such as grandchildren if a child is already deceased. Adopted children are generally treated the same as biological children.

  2. If there are no children or descendants, the surviving spouse is next in line. If children also exist, the spouse may inherits but typically the same amount as a child. However, if a spouse has the same or more assets than those that a child will receive then the Spouse may be not be entitled to any portion of the Estate.

  3. If neither children nor a spouse exists, the deceased's parents are next in line. This extends to grandparents if the parents are deceased.

  4. Should there be no ascendants or descendants, siblings and their descendants (nieces and nephews) can inherit.

  5. And if none of the above exist, more distant relatives up to the fourth degree (cousins, aunts, uncles) could inherit.

Marital Property Regimes

In Mexico, marriages can be entered into under two main property regimes: community property ("sociedad conyugal") or separate property ("separación de bienes"). The chosen regime impacts how assets are divided in the event of death.

Community Property

Under a community property regime, assets acquired during the marriage are jointly owned by the husband and wife. When a spouse dies intestate, the surviving spouse retains 50% of the community property, while the other half is distributed according to intestate succession laws. Community property assets exclude property acquired prior to the marriage or during the marriage as a gift or inheritance.

Example: A married woman dies intestate, leaving behind a husband and two adult children. The couple had a community property regime. In this case, 50% of the marital assets already belong to the surviving husband. The remaining 50%, which was the decedent’s portion of the marital assets, would be divided equally among the adult children. The husband would not be entitled to receive a portion of the late wife’s portion of the marital assets because he is the owner of one-half undivided of all marital assets, which is equal or more than the assets that a child will receive, and is therefore not entitled to any portion of the Estate.

Separate Property

If a marriage is under a separate property regime, each spouse maintains ownership of their individual assets. Upon death, the decedent’s separate assets are subject to intestate succession.

Example: A married man dies intestate, leaving behind a wife and two adult children. The couple had a separate property regime. Assuming the wife had no significant assets in her name at the time of husband’s death, the assets owned by the deceased husband would be divided equally among the the wife and the two adult children, each with a one-third undivided interest.

In Mexico, what happens to your property when you die without a will is influenced by both intestacy laws and the type of marital property regime that you have -whether you are aware of it or not. Knowing the difference between community and separate property is key to understanding how your assets will be divided among your family. To avoid unexpected results, it is best to understand what assets can be disposed under a will and then make a will for your assets in Mexico.

Learn about what Maldonado Myers LLP could do for you in a US-Mexico cross-border probate here.

Copyright 2023 by Antonio Maldonado, Maldonado Myers LLP

tags Intestate Succession, Community Property in Mexico, Separate Property in Mexico, Intestacy Rules in Mexico, Intestate Succession Mexico