Contributed By Baker McKenzie S.A.S.
Colombian rules on forced heirship are mandatory and apply to the estates of all individuals (national and foreign) whose last place of domicile is Colombia.
Colombian and foreign heirs have the same rights and are entitled to equal treatment in Colombian probate proceedings. The Colombian Civil Code forces the testator to assign certain compulsory portions, applicable to half of her or his estate even against her or his will.
The compulsory portions are (i) maintenance provided by law, (ii) marital portion and (iii) the legitimate portion.
Maintenance Provided by Law
A compulsory portion is assigned for the subsistence of the beneficiary in a way that corresponds to her or his standard of living. Individuals entitled to maintenance include the deceased's spouse, descendants per stirpes, ancestors or siblings. The amount of maintenance is assessed and appointed by a judge.
The marital portion corresponds to a part of the estate assigned by law to the surviving spouse or permanent partner lacking the necessary means for a subsistence. Taking into account the existence of any legitimate descendants, the surviving spouse or partner will be included among the deceased's children and shall receive a marital portion corresponding to a share of the estate equal to the portion corresponding to the legitimate descendants.
The legitimate portion corresponds to a part of the estate assigned by law to the legal heirs. Legal heirs are the deceased's children acting personally, or represented by their descendants or ancestors.
The legitimate portion is obtained by dividing half of the inheritance between all legitimate descendants and the surviving spouse or permanent partner.
The legal heirs converge to the succession and are excluded and represented according to the order and rules of the intestate succession.
Should there be any legitimate heirs
The testator may, at her or his discretion, favour the descendant or descendant that she or he prefers, assigning part of the estate in the proportion desired.
Should there be no legitimate heirs¬
If there are no heirs entitled to inherit this part of the inheritance, it will increase the freely disposable portion, as explained below.
A testator may, under Colombia law, dispose of a certain part of her or his wealth, up to half of his or her estate. Should there be no descendants or beneficiaries, directly or by representation, entitled to inherit, the freely disposable portion will represent the entire estate.
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