Understanding 'Unión de Hecho': How Common Law Marriage Impacts Inheritance in Ecuador

Navigating the legal landscape of a foreign country, especially concerning sensitive matters like inheritance, can be profoundly complex. As an Ecuadorian lawyer specializing in expat affairs here in Cuenca, I have guided countless clients through the intricacies of our laws. One of the most misunderstood yet critical concepts is the Unión de Hecho (de facto union), Ecuador's version of a common-law marriage, and its powerful implications for inheritance. A misunderstanding here can create devastating legal and financial consequences for a surviving partner.

Ecuadorian law, under Artículo 68 de la Constitución de la República, recognizes and protects families in their various forms. This includes not only formal marriage but also the stable and monogamous union between two people free of marital bonds. This recognition, the Unión de Hecho, grants specific rights and obligations that closely mirror those of a married couple, particularly in matters of inheritance. However, the path to securing these rights is distinct and requires precise legal steps.

What is an Unión de Hecho in Ecuador?

An Unión de Hecho is a legal status recognizing a stable, singular, and monogamous union between two people who, living together, form a de facto family. It is open to partners of any sexual orientation, provided they are legally capable of marrying. Crucially, it is not automatic. Merely living together is insufficient; the law requires a relationship that demonstrates the permanence and shared life of a marriage.

The core requirements for establishing an Unión de Hecho, as outlined in Artículo 222 del Código Civil (Civil Code), include:

Stability and Monogamy: The union must be continuous, exclusive, and free from any existing marriage ties for either partner.
Timeframe: While a strict two-year cohabitation requirement was removed in the 2015 legal reforms, judges in post-mortem declarations still heavily weigh a period of at least two years as strong evidence of a "stable and permanent" union.
Shared Life (Comunidad de Vida): The couple must demonstrate a shared household, finances, and public identity as a couple.
Legal Capacity: Both individuals must be of legal age and not have any legal impediments to marriage (e.g., close blood relatives).

The key legal outcome of a recognized Unión de Hecho is the formation of a "sociedad de bienes" (community property), which functions identically to the community property regime in a marriage. All assets acquired through the labor of either partner during the union are presumed to belong 50/50 to the couple.

How Unión de Hecho Differs from Formal Marriage Regarding Inheritance

While the inheritance rights are nearly identical, the foundational proof is what sets them apart.

Succession for the Legally Married

Upon the death of a spouse, the marriage certificate is definitive proof of the relationship. The surviving spouse is a primary heir. The process involves two key steps: first, the dissolution of the sociedad conyugal (community property), where the survivor receives their 50% share of joint assets. Second, the survivor inherits from the deceased's remaining 50% of the estate alongside any children. The survivor is also entitled to the "porción conyugal," a specific portion of the estate designated to ensure their subsistence if they lack sufficient personal assets.

Succession for the Unión de Hecho

For a surviving partner in a recognized Unión de Hecho, the inheritance rights are the same. They are entitled to their 50% of the sociedad de bienes and inherit from the deceased partner’s separate estate as a primary heir.

The critical difference lies in the proof. Without a pre-existing legal declaration, the onus is on the surviving partner to legally establish that the Unión de Hecho existed. A marriage certificate is a simple, single document; proving a de facto union after a death can be a complex judicial battle.

Establishing an Unión de Hecho for Inheritance Purposes

To secure inheritance rights, the union must be legally recognized. This can be done proactively while both partners are alive or, if necessary, retroactively after one partner has passed away.

Proactive Method: The Notarial Declaration (Declaración de Unión de Hecho)

This is the simplest, most secure, and highly recommended method for any committed couple.

Process: Both partners appear before a Notary Public to declare under oath that their relationship meets the legal requirements. The notary drafts a public deed (escritura pública) which is then registered at the Registro Civil. This registration solidifies the union's legal status.
Cost: The cost for a notarial declaration is generally modest, typically ranging from $150 to $250, a small price for immense legal certainty.
Hyper-Specific Tip for Expats: To get this done, both partners need a Certificado de Estado Civil from the Registro Civil to prove they are single, divorced, or widowed. A common pitfall for previously married expats is arriving at the notary with a simple foreign divorce decree. This is not sufficient. The foreign decree must be officially apostilled in its country of origin, translated into Spanish by a certified translator in Ecuador, and then registered with the Ecuadorian Registro Civil to be legally valid here. This process alone can take months and must be completed before you can declare your Unión de Hecho.

Retroactive Method: Judicial Recognition (Declaratoria Judicial Post Mortem)

If a partner dies before the union is notarized, the surviving partner must file a lawsuit to have a judge legally recognize the Unión de Hecho. This is a formal legal proceeding known as a juicio sumario.

Process: The surviving partner (the plaintiff) must present compelling evidence to the court to prove the union's existence and duration, up to the date of the partner's death.
Essential Evidence:
- Witness Testimony: Testimony from friends, landlords, or neighbors who can attest to the public, stable nature of the relationship is crucial.
- Documentary Proof: This is paramount. Judges look for concrete evidence like:
  - Joint bank account statements.
  - Property deeds or rental contracts in both names.
  - Utility bills showing a shared address over several years.
  - Designation as a beneficiary on life insurance or an IESS (Ecuadorian Social Security) account.
  - Travel itineraries, photographs, and social media posts demonstrating a long-term public relationship.
  - The birth certificate of any children from the union is arguably the strongest evidence.
Legal Hurdles: This process can be slow, adversarial (if other heirs contest it), and emotionally taxing during a time of grief.

Inheritance Rights of Children from an Unión de Hecho

Under Ecuadorian law, there is no distinction between children born within a marriage and those born within a recognized Unión de Hecho. They are all considered legitimate children with equal and full inheritance rights. The challenge, again, lies in ensuring the parental union is legally established to streamline the inheritance process.

Common Expat Pitfalls to Avoid

"We've Lived Together for Years, We're Covered": This is a dangerously false assumption. Without the formal notarial declaration or a judicial ruling, your years of cohabitation have no automatic legal weight for inheritance. You are a legal stranger to your partner's estate.
Relying on a Foreign Will: An American or European will is not a magic bullet for your Ecuadorian assets. Ecuador has "asignaciones forzosas" (forced heirship laws) that mandate portions of an estate go to children and a surviving spouse/partner. A foreign will that contradicts these rules can be challenged and partially invalidated by an Ecuadorian court concerning assets located in Ecuador.
Neglecting to Create Documentary "Footprints": In the digital age, it's easy to have finances separated. However, for an Unión de Hecho, this is a legal liability. Deliberately creating a paper trail—a joint account for household bills, putting both names on a rental agreement—is not just practical; it is a critical legal protection strategy.
Procrastinating on the Notary Visit: The notarial declaration is a straightforward, inexpensive administrative process. Waiting until a health crisis or death turns a simple procedure into a complex and costly lawsuit.

⚠️ Legal Alert: When to Stop and Consult an Attorney

You must immediately consult with an experienced Ecuadorian lawyer if:

Your partner has passed away, and your Unión de Hecho was not registered at the Registro Civil.
Other heirs (such as children from a previous relationship or estranged family members) are disputing your relationship or your right to inherit.
You need to initiate a juicio sumario to have your union recognized post-mortem.
You are an expat with significant assets in both Ecuador and your home country and need an integrated estate plan that includes a valid Ecuadorian will (testamento).
You are unsure how to handle the apostille and registration process for a foreign divorce or death certificate required to formalize your union.

Navigating the intersection of inheritance, estate law, and the Unión de Hecho requires specialized knowledge. Attempting to manage this alone, especially while grieving, is a recipe for error and financial loss.

Securing Your Future and Your Partner’s Legacy

The Unión de Hecho is a powerful legal tool that embodies Ecuador’s modern and inclusive view of family. For expats building a life here, understanding and utilizing it correctly is not just a matter of legal compliance—it is a profound act of care and protection for your partner. By taking proactive, informed steps, you can ensure that your relationship is honored and your shared legacy is secure, no matter what the future holds.

Ready to ensure your rights and your partner's legacy are protected?

Schedule your initial consultation today. We can provide clarity on your specific situation and help you navigate the complexities of Ecuadorian inheritance law with confidence.