Unmarried Partnerships and Joint Assets: Navigating Ecuadorian Estate Law in Cuenca

For many expats choosing Cuenca as their home, the dream is one of peaceful retirement, shared adventures, and building a life together. Often, this life is built with a partner, but not always under the legal umbrella of marriage. While Ecuadorian law comprehensively addresses inheritance for married couples, the situation for unmarried partners holding joint assets presents a distinct set of legal considerations. As an Ecuadorian lawyer and legal consultant with extensive experience assisting the expat community in Cuenca, I have seen firsthand the devastating consequences of inadequate planning. This article aims to demystify the process, providing clear, actionable guidance grounded in the Ecuadorian Constitution and Civil Code.

Understanding the Legal Landscape: Marriage vs. "Unión de Hecho"

It is crucial to first understand that Ecuadorian law, for the purposes of inheritance, does not automatically equate cohabitation with legal marriage. However, Ecuador's legal framework is progressive and offers significant protections through the concept of a "Unión de Hecho" (De Facto Union).

The 2008 Constitution of the Republic of Ecuador, in Artículo 68, explicitly recognizes the de facto union, stating that a stable and monogamous union between two persons free of matrimonial bond who form a de facto home, for the period and under the conditions and circumstances indicated by law, shall generate the same rights and obligations as those of families constituted by marriage.

This constitutional protection gives rise to a sociedad de bienes (community of property), which functions almost identically to the sociedad conyugal in a marriage. This means assets acquired by either partner during the recognized union are considered joint property. However, this status is not automatic and requires formalization.

The Critical Step: Formalizing and Registering Your "Unión de Hecho"

Simply living together for two years is not enough to secure your rights. To be legally enforceable, the "Unión de Hecho" must be formalized. This can be done via a public deed before a Notary Public (Notaría) or through a judicial declaration.

Once formalized, the union must be registered at the Registro Civil. This is a non-obvious step that many expats miss. Upon registration, your civil status on your Ecuadorian cédula (ID card) will be updated to reflect the "Unión de Hecho." This public registration is critical evidence of the partnership's existence and the associated community property rights.

Hyper-Specific Tip: In Cuenca, when you go to the main Registro Civil office on Avenida Remigio Crespo Toral, you will need to present your notarized "Unión de Hecho" declaration and complete the form "Solicitud de Inscripción de Unión de Hecho." Without this final registration step, asserting your rights later can become a complex and costly legal battle.

Joint Assets: What Happens Without a Will?

Even with a registered "Unión de Hecho," the absence of a will (testamento) creates significant risk. While the surviving partner is entitled to their 50% of the sociedad de bienes, they do not automatically inherit the deceased partner's 50% share.

Instead, the deceased's assets pass according to the rigid rules of intestate succession outlined in Book III of the Código Civil del Ecuador. The legal heirs (herederos forzosos or forced heirs) will inherit the deceased's share. The order of succession is:

Children: Descendants have the primary right to inherit.
Parents and Surviving Spouse/Partner: If there are no children, the estate is divided between the deceased's parents and the surviving partner.
Siblings: In the absence of the above, siblings inherit.
The State: Ultimately, the estate may revert to the State.

This could result in a surviving partner co-owning their home with their deceased partner's children or parents from a previous relationship—a distressing and often untenable situation.

Proactive Planning: The Power of an Ecuadorian Will ("Testamento")

The most effective and secure way to protect your partner is through a meticulously drafted Ecuadorian will. However, it is essential to understand its power and its limitations under Ecuadorian law.

The "Cuarta de Libre Disposición" (The Freely Disposable Quarter)

A common misconception among expats is that a will allows them to leave 100% of their assets to whomever they choose. This is incorrect. Ecuadorian law protects forced heirs. According to Artículo 1207 of the Código Civil, you can only freely dispose of a portion of your estate if you have forced heirs.

If you have children (or grandchildren), you can only freely bequeath one-quarter (25%) of your estate to your partner. The other three-quarters (legítima rigorosa and cuarta de mejoras) are legally reserved for your descendants.
If you have no children but your parents are living, you can freely bequeath one-half (50%) of your estate. The other half is reserved for your parents.

The will is therefore used to explicitly grant your partner the maximum allowable share of your half of the joint assets.

The "Testamento Abierto" (Open Will)

For its clarity and legal security, the Testamento Abierto is the most recommended type for expats. It is executed before a Notary Public and three witnesses. The notary drafts the public deed based on your declarations, ensuring full compliance with legal formalities.

Hyper-Specific Tip: The cost for drafting and notarizing a standard Testamento Abierto in Cuenca typically ranges from $250 to $400 USD, a minor investment for the immense security it provides.

Practical Steps for Unmarried Partners in Cuenca

Formalize and Register Your "Unión de Hecho": If you've lived together in a stable, monogamous relationship for over two years, consult a lawyer to draft the declaration and immediately register it at the Registro Civil.
Draft a Comprehensive Ecuadorian Will: Engage an experienced attorney. This is not a DIY task. Be prepared to clearly identify all assets, including property registration numbers from the Registro de la Propiedad, and designate your partner as the beneficiary of your cuarta de libre disposición.
Correctly Title Your Assets: Ensure property deeds (escrituras) and bank accounts are in both names. This simplifies the division of the sociedad de bienes and clarifies that your partner already owns 50% outright.
Plan for the "Posesión Efectiva": Understand that after a death, the heirs (including the partner named in the will) must undertake a notarial process called "Posesión Efectiva de Bienes Hereditarios" to legally take possession of the inherited assets. This is the final step to transfer title. This process involves public notices and has associated notarial and municipal fees.

⚠️ Legal Alert: When to Stop and Consult an Attorney

You absolutely must consult an attorney if:

Your partner passes away unexpectedly without a will or a registered "Unión de Hecho": This is a legal emergency requiring immediate action to prove the union's existence and protect your share of the assets.
You have children from a previous relationship: The rules of forced heirship are complex and require expert navigation to maximize what you can leave to your partner.
Your partner's legal heirs are contentious or live abroad: This can significantly complicate the intestate succession or Posesión Efectiva process.
You own a business or have complex investments: These require specialized planning to ensure a smooth transition and avoid disputes.

Conclusion: Securing Your Future Together

While Ecuador's laws are not identical to those in North America or Europe, they provide a robust framework for protecting unmarried partners. The key is proactive, informed action. By formally registering your "Unión de Hecho" and executing a legally sound will that respects the principles of forced heirship, you can secure your shared assets and ensure your partner is protected. Do not leave your shared life to the default, and often unforgiving, rules of intestate succession.