A Dual Citizen's Guide to Ecuadorian Inheritance Law: Protecting Your Assets and Heirs

As a dual US/Ecuadorian citizen, particularly one residing in Ecuador, you navigate a unique legal landscape. While this status offers immense benefits, it introduces critical complexities in estate planning. The intersection of US and Ecuadorian law, governed by principles of private international law, requires careful and expert handling to ensure your assets are distributed according to your wishes. This guide provides an authoritative overview of how Ecuadorian inheritance law functions and the specific steps dual citizens must take to protect their legacy.

The bedrock principle of Ecuadorian succession is straightforward: real estate located within Ecuador is unequivocally subject to Ecuadorian law, irrespective of the owner's nationality. Movable property (e.g., bank accounts, vehicles, investments) is generally governed by the law of the deceased’s last domicile. For a dual citizen living in Cuenca, this almost always means Ecuadorian law will govern the entire process. This is where a precise understanding of the local legal framework becomes not just beneficial, but essential.

Core Legal Principles: Lex Rei Sitae and Domicile

To grasp the complexities, two foundational concepts of private international law are key:

• Lex Rei Sitae (Law of the Place Where the Property is Situated): This principle dictates that immovable property (land, buildings) is governed by the laws of the country where it is located. For your property in Ecuador, any inheritance process or dispute falls squarely under the jurisdiction of the Ecuadorian legal system.
• Law of the Domicile: This principle applies to movable property. The law of the deceased’s permanent home at the time of death governs the distribution of personal assets. For a dual citizen whose life is centered in Ecuador, Ecuadorian law will apply to these assets. Ambiguity in domicile can create conflict, but for established residents, Ecuadorian law is the default.

The Ecuadorian Legal Framework: Beyond International Treaties

While the United States and Ecuador do not have a specific bilateral inheritance treaty, this does not create a legal void. The process is comprehensively governed by domestic Ecuadorian legislation, primarily the Código Civil (Civil Code) and the Código Orgánico General de Procesos (COGEP). An Ecuadorian court will not defer to a US will or probate order for real property located in Ecuador.

Key Mandates in Ecuadorian Inheritance Law:

• Universal Succession: Heirs inherit the entirety of the deceased’s estate—both assets and liabilities. This is a foundational concept established in Artículo 993 of the Civil Code, which states that succession occurs for all of a deceased person's property, rights, and obligations.
• Order of Succession: In the absence of a will (intestate succession), the law provides a strict hierarchy. Artículo 1023 of the Civil Code outlines the orders of succession: 1) Children, 2) Parents and surviving spouse/partner, 3) Siblings, and so on.
• Forced Heirship (Legitimarios): This is the most critical and often misunderstood concept for US expats. Ecuadorian law mandates that a significant portion of an estate must be reserved for specific heirs (legitimarios).
  • Who are they? Artículo 1205 of the Civil Code defines forced heirs as the children of the deceased and the parents of the deceased.
  • How much? Artículo 1207 of the Civil Code specifies that half (la mitad) of the estate constitutes the legítima rigurosa and must be divided among these heirs. You cannot disinherit them from this portion via a will. This directly conflicts with the testamentary freedom common in the United States.
• Wills in Ecuador (Testamentos): Ecuador recognizes wills, but they must adhere to strict formalities to be valid. The most common and secure form for an expat is a testamento solemne abierto (solemn open will), which must be executed in Spanish before a Notary Public and three witnesses. A US will, even if notarized, will not suffice for transferring Ecuadorian real estate.

Practical Realities and Hyper-Specific Hurdles

Navigating the system requires more than knowing the law; it involves understanding the local bureaucratic process.

1. The "Posesión Efectiva" Process: This is the legal procedure for recognizing heirs and transferring the deceased's assets. It can be done extrajudicially before a notary if all heirs are in agreement, which is faster and more cost-effective. The approximate cost for a straightforward notarial Posesión Efectiva is currently between $400 and $800, plus registration fees. The judicial route is necessary if there are minors or disputes among heirs.

2. The Critical SRI Declaration: Heirs must file an inheritance tax declaration with the SRI (Servicio de Rentas Internas), Ecuador's tax authority, using "Formulario 108". This is mandatory even if the inheritance value is below the tax-exempt threshold (currently over $70,000) and no tax is due. Failure to file can result in fines and block the registration of assets.

3. A Common (and Costly) Mistake: A frequent error is assuming the notary process is the final step. After the Posesión Efectiva is granted by a notary or judge, the act must be physically taken to and registered at the Registro de la Propiedad (Property Registry) in the canton where the real estate is located. Until this is done, the property title has not been legally transferred to the heirs.

4. The Cuenca Municipal Hurdle: Before you can register the inherited property at the Registro de la Propiedad in Cuenca, you must obtain a Certificado de no adeudar al Municipio (Certificate of No Debt to the Municipality) for the deceased. Any outstanding property taxes (impuestos prediales) or municipal fees must be settled first. This can cause significant delays if the deceased's records are not in perfect order.

5. Recognizing a US Probate Order: While possible, having a US probate judgment recognized in Ecuador to deal with local assets is a complex, expensive, and time-consuming process called an Exequatur, governed by Artículos 102-106 of the COGEP. It is far more efficient to have a separate, valid Ecuadorian will.

Actionable Steps for Dual Citizens in Ecuador

1. Draft a Valid Ecuadorian Will: This is non-negotiable. Work with an experienced Ecuadorian attorney to draft a testamento solemne abierto. This will ensures your wishes for the "freely disposable" portion of your estate are honored while respecting the mandatory legítima.
2. Coordinate with Your US Estate Plan: Your Ecuadorian will should address only your Ecuadorian assets. A separate US will should cover your US-based assets. Ensure the two documents do not conflict.
3. Identify Your Legitimarios: Clearly understand who your forced heirs are under Ecuadorian law and structure your estate plan accordingly.
4. Organize Your Documents: Maintain a clear record of property titles, bank accounts, and vehicle registrations. Ensure your municipal and federal taxes are paid up to date to ease the future burden on your heirs.
5. Appoint a Local Representative: Designate a trusted person in Ecuador, often your attorney, to act as a representative (apoderado) or executor to manage the Posesión Efectiva process.

Legal Checklist for Cuenca Expats

• [ ] Have you inventoried all your assets, both in Ecuador and abroad?
• [ ] Do you have a valid Ecuadorian will, in Spanish, executed before a notary?
• [ ] Does your will correctly identify your forced heirs (legitimarios) and respect the legítima?
• [ ] Is your Ecuadorian will properly coordinated with your US estate plan?
• [ ] Are your property taxes (impuestos prediales) and other municipal obligations current?
• [ ] Have you consulted with an Ecuadorian attorney specializing in succession law?

⚠️ Legal Alert: When to Consult an Attorney Immediately

STOP and seek qualified legal counsel if:

• You own real estate in Ecuador and do not have a valid Ecuadorian will.
• You have a complex family structure (e.g., children from multiple relationships, estranged family members).
• You are an heir to an estate and are being asked to sign documents you do not understand.
• There is any disagreement among potential heirs.
• You wish to leave assets to a non-family member or charity, which requires careful planning around the legítima.

For dual citizens, proactive and knowledgeable estate planning is the only way to ensure a smooth transfer of assets and safeguard your family's future. By understanding and adhering to the specifics of Ecuadorian law, you can achieve peace of mind and secure your legacy in the country you call home.