ABSTRACT
This article
analyzes the regulation of anticipated inheritance in Ecuador and Peru,
highlighting the regulatory differences and the associated legal challenges.
Among the main findings, it is observed that in Peru there is a clear norm that
regulates the anticipated inheritance, while in Ecuador this figure lacks a
specific treatment, which generates legal uncertainty and possible conflicts.
As a solution, it is proposed to reform the Ecuadorian Civil Code to include a
clear definition of anticipated inheritance, to establish formal requirements
such as public deed and registry registration, and to guarantee rules of
collation that reinforce equity. This study concludes that a specific
regulation can improve efficiency and transparency in the distribution of
estates, laying the groundwork for future research to promote regulatory
harmonization in the region. Therefore, the objective of this article is to
compare the regulation and application of anticipated inheritance in Ecuador
and Peru, with the purpose of identifying similarities, differences and areas
for improvement in the Ecuadorian regulatory system. The methodology used is a
comparative analysis of the legal frameworks, focusing on aspects such as legal
certainty, patrimonial equity and formality in the procedures.
RESUMEN
Este artículo analiza la regulación de
la herencia anticipada en Ecuador y Perú, destacando las diferencias normativas
y los desafíos legales asociados. Entre los principales hallazgos, se observa
que en Perú existe una normativa clara que regula el anticipo de herencia,
mientras que en Ecuador esta figura carece de un tratamiento específico, lo que
genera incertidumbre jurídica y posibles conflictos. Como solución, se propone
reformar el Código Civil ecuatoriano para incluir una definición clara de la
herencia anticipada, establecer requisitos formales como la escritura pública e
inscripción registral, y garantizar reglas de colación que refuercen la
equidad. Este estudio concluye que una regulación específica puede mejorar la
eficacia y la transparencia en la distribución patrimonial, sentando las bases
para futuras investigaciones que promuevan la armonización normativa en la
región. Es por ello que, el objetivo de este artículo es comparar la regulación
y aplicación de la herencia anticipada en Ecuador y Perú, con el propósito de
identificar similitudes, diferencias y áreas de mejora en el sistema normativo
ecuatoriano. La metodología empleada es un análisis comparativo de los marcos
legales, enfocándose en aspectos como la seguridad jurídica, la equidad
patrimonial y la formalidad en los procedimientos.
Keywords / Palabras
clave
Patrimonial
equity, early inheritance, legal security.
equidad
patrimonial, herencia anticipada, seguridad jurídica
Introduction
Anticipated
inheritance, also known as an advance on the reserved portion of an estate, is
a legal concept which, according to Alvarado, is the right that allows a person
to dispose of a part of their assets in their lifetime in favor of their forced
heirs, guaranteeing their inheritance rights; in other words, it is a pact of
wills between the anticipating and anticipated parties. This mechanism is
highly relevant in the legal sphere, as it seeks to balance the interests of
the heirs and the owner of the assets, as well as to prevent possible
inheritance conflicts. However, its regulation and application vary
significantly between countries, which raises the need for a comparative
analysis to identify good practices and legal challenges applicable to the Ecuadorian
legal system.
In the case
of Ecuador and Peru, the legal problem lies in the substantial differences
between their regulatory frameworks regarding anticipated inheritance. While in
Peru this figure is expressly regulated, in Ecuador there is no specific
regulation, and its implementation is carried out through other legal figures,
which raises questions about which model is more efficient and equitable in
inheritance practice. These discrepancies have a direct impact on the
protection of the heirs' rights and on the autonomy of the deceased to dispose
of their assets during their lifetime, which highlights the need to evaluate
possible legislative reforms in the Ecuadorian case.
The relevance of this analysis is based on understanding how the legal
particularities of each country affect the application of anticipated
inheritance and on promoting critical reflection on the normative aspects that
could be optimized in Ecuador. From the perspective of comparative law, this
study offers a valuable approach that can serve as a reference for the design
of legal reforms that favor greater security and equity in the field of
inheritance.
For which
it is important to start by defining inheritance; according to Ulchango and Galarraga (2021) “inheritances are the assets
and liabilities attributed in kind, left by the deceased at the time of opening
the succession, that is, at the time of their death due to a cause of death.”
(p 14). This article also aims to address the importance not only of this
succession after death, but also of the fact that it can occur during a
person's lifetime, which brings several benefits for the person whose assets
pass to the heir or person of their choice, thus fulfilling their wish.
Therefore, the general objective of this article is to compare the regulation
and application of anticipated inheritance in Ecuador and Peru, with the
purpose of identifying similarities, differences and areas for improvement in
the Ecuadorian regulatory system .
In terms of its structure, the article is organized into four main sections.
First, the concept of anticipated inheritance is defined and the regulatory
frameworks of both countries are described. Secondly, the challenges and
opportunities posed by this concept in each legal context are examined. This is
followed by a comparative analysis that highlights the similarities and
differences between the regulations. Finally, the conclusions and
recommendations derived from the study are presented. This approach guarantees
a comprehensive analysis, aimed at both legal professionals and those interested in inheritance matters.
Development
Anticipated
inheritance is a legal mechanism that allows the deceased, during their
lifetime, to make a partial or total allocation of their assets to the legal
heirs or to third parties. For Fontanellas, the
purpose of this act is to prevent future conflicts between the beneficiaries
and to facilitate an orderly distribution of the assets. In Ecuador, this
concept is regulated in the Civil Code, which establishes that donations made
during a person's lifetime to forced heirs, which should be considered as part
of the legitimate portion, guaranteeing equity in the distribution of the
estate. According to Loguarro, legal certainty is a
fundamental principle of law that seeks to protect the trust of citizens in
legal provisions and in acts carried out in accordance with the law in the
field of distribution of property. Legal certainty guarantees that the
agreements adopted on anticipated inheritance are respected and protected
against possible challenges or legal conflicts.
In a
normative comparison, it can be seen that while in Peru anticipated inheritance
has clear and strict regulation, in Ecuador this figure is not specifically
dealt with in legislation. This Ecuadorian normative vacuum generates legal
uncertainty, since lifetime donations, although recognized as part of the
legitimate portion, lack detailed procedures to guarantee their correct
allocation and transparency. This contrasts with Peru, where the legal
framework ensures more rigorous control over anticipated transfers.
Comparative
regulation also highlights differences in the handling of the formality of the
acts. In Ecuador, living donations only require a public deed and acceptance by
the beneficiary, while in Peru, in addition to the public deed, registration in
official records is required. This additional requirement in Peru reinforces
legal certainty by making it more difficult to challenge the acts and providing
a transparent and verifiable record of the transfers made.
From a
comparative law perspective, the Peruvian system has advantages in that it
guarantees that lifetime gifts are compulsorily integrated into the calculation
of the legitimate share. This approach not only reinforces equity between
heirs, but also ensures that anticipated assets are accounted for correctly,
minimizing legal disputes. In Ecuador, on the other hand, the lack of
regulation generates inequalities in the distribution of assets, which can lead
to family conflicts.
Another
relevant point is the protection of the rights of the heirs entitled to a
reserved share. For this reason, it is essential to take into consideration the
rights that involve the concept of patrimony, as Morales and Daza (2016)
mention, “it involves the following rights: the right to property, patrimonial
right or economic right, consequently, the right to things, the right to
obligations and hereditary succession (or mortis causa), which constitutes
patrimony as a universitas iuris” In Peru, the regulations
guarantee that all anticipated transfers respect the principle of legitimate
inheritance, promoting equity among forced heirs.
In Ecuador,
although this principle is implicit in inter vivos
donations, the lack of specific regulation hinders its uniform application,
leaving room for subjective interpretations and potential abuses. Therefore,
for de la Guerra (2017), from a positive point of view, the law should be a
vehicle for generating certainty, hence there is a direct relationship between
legal certainty and the certainty of the norm. If this is not the case, we
would face a scenario of legal uncertainty, which allows us to show that
regulatory differences also reflect the level of prevention of legal conflicts.
Peru
establishes detailed procedures that seek to prevent disputes through strict
formalization and registry control. On the other hand, in Ecuador, the absence
of these mechanisms encourages the judicialization of inheritance conflicts,
increasing the costs and time associated with their resolution. This contrast
highlights the need to adopt elements of the Peruvian model to strengthen the
Ecuadorian legal framework.
A
comparative analysis reveals that the Peruvian regulatory structure provides
greater predictability and confidence for citizens when planning their estate.
Mandatory requirements such as registration protect both the deceased and the
heirs, ensuring that agreements are carried out within a legal framework. In
Ecuador, the lack of such measures reduces confidence in the system and hinders
effective estate planning.
Inheritance law in Ecuador and Peru
Inheritance
law in Ecuador and Peru shares common ground due to its origin in the
Romano-Germanic legal system, although there are particular differences in how
it is regulated. In Ecuador, the Civil Code of the Republic of Ecuador
establishes that: “a donation inter vivos is an act
by which a person gratuitously and irrevocably transfers a part of their assets
to another person, who accepts it” (art. 1402), however, not as an advance on
the legal share. As Vintimilla et al. point out, donation in this sense is more
broadly present in Ecuadorian legislation and this allows a person to grant
their assets to anyone, not exclusively to their heirs, framing it as a
contract between two parties.
On the
other hand, in Peru, the Civil Code of Peru also recognizes the figure of
anticipated inheritance which states: “donations or other gifts that, for
whatever reason, have been received from the deceased by his or her forced
heirs, shall be considered as an advance on the inheritance for the purpose of
collation, unless waived by the deceased”. (art. 831) According to this
instrument, it allows the deceased to transfer assets to their heirs during
their lifetime, but it requires a strict formality to guarantee its validity
and the protection of the rights of the other legal heirs. Both countries
promote the principle of free will as long as it does not violate legal
provisions.
A
comparative analysis of Ecuadorian and Peruvian legislation demonstrates the
relevance of legal provisions to protect the patrimonial rights of heirs.
Through anticipated inheritance, both systems seek to prevent legal disputes,
guarantee legal certainty and respect the rights of legal heirs. And above all,
to guarantee the right of individuals to decide how, as Arsham points out,
“people should be free of pressure or coercion, and be able to make their own
decisions, identifying the consequences that derive from them and their
implications” (p. 104); for this reason it is
essential that the regulations be adapted to the new needs of citizens. The
following table summarizes the relationship between current regulations and the
protection of property rights in both countries:
Table 1. Comparison
between donation and anticipated inheritance,
Ecuador-Peru.
|
Aspecto
|
Ecuador
|
Perú
|
|
Figura
legal
|
La
donación es la figura utilizada para anticipar bienes.
|
El
anticipo de herencia está regulado como figura específica.
|
|
Regulación
|
Se
regula bajo el Código Civil ecuatoriano, sin normativa específica.
|
El
Código Civil peruano incluye artículos claros sobre el anticipo de legítima.
|
|
Libertad
de decisión a los causantes
|
Permite
al donante garantizar derechos de sus herederos.
|
Protege
la porción obligatoria de los herederos legitimarios.
|
|
Formalidad
|
Requiere
escritura pública y aceptación del beneficiario.
|
Exige
escritura pública e inscripción en registros oficiales.
|
|
Seguridad
jurídica
|
Garantizada
por una regulación general, aunque limitada en especificidad.
|
Requiere
cumplir requisitos estrictos que fortalecen la protección de derechos
patrimoniales.
|
Created by
Moncayo 2025 Note: The table compares the regulation and legal
characteristics of donation in Ecuador and anticipated inheritance in Peru. Source: Civil
Code of Ecuador and Civil Code of Peru.
The table
highlights the fundamental differences between the legal concepts of donation
in Ecuador and anticipated inheritance in Peru, particularly in their capacity
to guarantee the protection of property rights; in Ecuador, the concept of
donation offers the deceased a certain degree of flexibility in the disposal of
their assets, but lacks a specific regulatory framework to govern its
integration into the legitimate portion, which can generate inequalities
between heirs.
In
contrast, Peru addresses anticipated inheritance in a more structured way,
ensuring that lifetime gifts are considered in the calculation of the reserved
share, which reinforces equity among forced heirs; in terms of formality,
although both countries require a public deed, Peru adds an additional level of
security through registration, this procedure not only brings transparency to
the process, but also makes it more difficult to challenge the acts, thus
strengthening legal certainty for all parties involved.
The
comparison shows that while Ecuador prioritizes the freedom of the deceased,
Peru focuses on equity and legal certainty, this suggests that the Peruvian
system offers better protection of property rights by limiting possible abuses
and ensuring that the distribution of property is more
transparent and fair, which could be replicated by the Ecuadorian legal
system as it would provide security for both the testator and potential heirs
because we would have a specific procedure to follow.
Principles of inheritance law in Ecuador and Peru.
The
principles of inheritance law in Ecuador and Peru share a common basis derived
from the Romano-Germanic legal system, focusing on guaranteeing the protection
of the heirs entitled by law and respect for the autonomy of the testator. It
is therefore important to analyze some of the principles on which inheritance
law is based in both countries. One of theprinciples
is that of the universality of succession, a fundamental pillar of
inheritance law in Ecuador and Peru, since, as Echeverría y otro
(2011) states, “The inheritance estate is a single one and includes all assets,
rights and debts” (p. 29) In other words, the heirs cannot take possession of
the assets alone but must also assume the obligations that the deceased had or
has, which are important in the event that the deceased wishes to transfer his
or her assets in advance, as he or she can also transfer his or her
obligations.
Likewise,
the principle of the autonomy of
the testator's will applies, which
allows the person to dispose of their assets during
their lifetime and to determine to a certain extent the destination of their
inheritance, either in the case of Ecuador through a will or donation or in the
case of Peru through anticipated inheritance. As de la Guerra (2017) states,
“to do so within the framework of what is permissible according to the rules of
current civil law; likewise, death could come to the deceased prior to the
express manifestation of his will, in which case the fate of his estate is
already generally determined by law” (p.39) In other words, this principle is
not absolute, as it must respect the legitimate rights of forced heirs and
comply with the formalities established by law for its validity. In this sense,
the Peruvian legal system has clearer provisions regarding the formalization of
wills and the limits of the testator's will, while in Ecuador the regulation of
these provisions is more general and can generate conflicts in the
interpretation of inheritance.
Finally,
the principle of equality among heirs establishes that successors of the same
degree are entitled to receive equal shares of the inheritance, unless
otherwise provided by law or by the will. As Narváez and Andrade (2023)
mention, “the limitations seek to promote distributive justice and foster
greater equality of opportunity” (p. 44). This principle seeks to avoid
discrimination and ensure an equitable distribution of the deceased's estate.
However, in both countries, this principle is applied with certain exceptions.
In the case of Peru, it is more flexible and allows for a certain degree of
inequality, as long as it is in accordance with the wishes of the deceased.
However, in Ecuador the lack of a specific regulation on anticipated
inheritance can generate imbalances in the application of this principle. At
the same time, this principle allows us to understand that if there is a case
of anticipated inheritance and the other heirs agree, this would generate a
lock so that in the future it is no longer possible to make a claim for such
anticipated inheritance.
The
comparison highlights how a specific regulatory framework, such as that of
Peru, can prevent inequities and promote a balance between the wishes of the
deceased and the rights of the heirs. In Ecuador, the lack of regulation leaves
room for possible abuses, which affects the estate planning of citizens. The
importance of comparative law lies in its capacity to identify good practices
that can be adopted in other contexts. The success of the Peruvian system
demonstrates that the strict formalization and integration of donations into
the inheritance framework are essential elements to guarantee a fair
distribution and prevent conflicts.
The
adoption of legislative reforms in Ecuador regarding anticipated inheritance
would not only strengthen the protection of assets, but would also align the
legal system with international standards, promoting greater confidence in
institutions. These reforms should prioritize transparency, the protection of
heirs and foresight in inheritance proceedings, establishing a comprehensive
framework that favors equity and legal certainty over
time.
Discussion
A
comparative analysis of inheritance laws in Ecuador and Peru reveals significant
differences in the
regulation of anticipated inheritance, reflecting both similarities in their
legal origin and differences in their practical implementation. In the Peruvian
case, the concept is robustly regulated by Article 831 of the Peruvian Civil
Code, which requires formalization by public deed and registration. There is
also a state body, the National Superintendency of Public Registries, which is
responsible for overseeing this type of legal act.
This legal
framework not only ensures transparency and legal certainty, but also reduces
opportunities for dispute between heirs; in contrast, the Ecuadorian system
deals with anticipated inheritance indirectly through the regulations on
donations, which causes uncertainty in the procedures, risks of inequity in the
distribution of the estate and restricted protection for forced heirs.
Ecuadorian
regulations suffer from significant inconsistencies that hinder the effective
application of anticipated inheritance, which underlines the need for a
specific legal framework; although article 1402 of the Civil Code recognizes
donations as legal acts, it does not establish clear mechanisms to protect the
rights of forced heirs nor does it specify how such donations should be
accounted for in the calculation of the legitimate portion.
In
contrast, the Peruvian system explicitly integrates donations into the
calculation of the legal share, ensuring an equitable distribution of assets
and avoiding subsequent conflicts; these regulatory differences highlight how a
structured approach can prevent property disputes and strengthen legal
certainty in the field of inheritance.
The lack of
specific regulations in Ecuador causes legal loopholes that impact both the
transparency and the safeguarding of property rights; among the main loopholes
detected are the lack of clear processes to formalize acts of anticipated
inheritance and the lack of controls to prevent the manipulation of donations
to circumvent the legitimate portion. These deficiencies not only weaken
confidence in the legal system, but also put families in protracted conflicts,
especially in contexts where the estate includes assets of high economic or
symbolic value.
In Peru,
the regulation of anticipated inheritance is based on a preventive approach,
where the strict formalization of legal acts acts as
a barrier against challenge and fraud. this system not only protects the forced
heirs, but also facilitates the estate planning of the deceased, who can
dispose of their assets with the certainty that their decisions will be respected , in Ecuador the informality of the processes
generates a scenario conducive to the judicialization of conflicts, which
increases the costs and time associated with dispute resolution.
Another
relevant aspect is the protection of the rights of the legal heirs, in Peru,
the regulations guarantee that all anticipated transfers respect the principle
of the legitimate portion, promoting equity among the forced heirs; in Ecuador,
although this principle is implicit in inter vivos
donations, the lack of specific regulation makes its uniform application
difficult , leaving room for subjective interpretations and potential abuses,
this reflects the need to adopt a more structured approach in the Ecuadorian
system.
The
regulatory differences also reflect the level of prevention of legal conflicts;
Peru establishes detailed procedures that seek to prevent disputes through
strict formalization and registry control; in Ecuador, the absence of these
mechanisms encourages the judicialization of inheritance conflicts, increasing
the costs and time associated with their resolution. This contrast highlights
the need to adopt elements of the Peruvian model to strengthen the Ecuadorian
legal framework.
A
comparative analysis reveals that the Peruvian regulatory structure provides
greater predictability and confidence for citizens when planning their estate,
the obligatory nature of requirements such as registration protects both the
deceased and the heirs, ensuring that agreements are developed within a
framework of legality. In Ecuador, the lack of such measures reduces confidence
in the system and hinders effective estate planning.
The
contrast between the two systems demonstrates the importance of specific
regulation for anticipated inheritance. While in Peru the legal framework
provides clarity and legal certainty, in Ecuador the informality of the
processes negatively affects both equity and transparency in the distribution
of assets. The adoption of key elements of the Peruvian regulations could
resolve these gaps, promoting a fairer and more efficient model in Ecuador.
Comparative
experience suggests that the implementation of reforms inspired by models such
as the Peruvian one could transform the Ecuadorian legal panorama, but it is
crucial to adapt them to the social particularities of the country. In Ecuador,
where land ownership in rural areas is often fragmented and linked to community
traditions, rigid regulation could generate resistance if flexible mechanisms
for specific cases are not considered. A balanced approach, combining formality
with cultural sensitivity, would ensure that the reforms not only comply with
technical standards, but are also accepted and applied in practice.
Another
factor to take into account is the role of notaries and registrars in conflict
resolution; in Peru, the compulsory nature of registration acts as a filter
that ensures the validity of actions, in Ecuador, the absence of this
requirement places an excessive burden on heirs to prove the legitimacy of
donations; this not only increases litigation, but also perpetuates
inequalities, as families with less access to legal resources are at a
disadvantage. A reform in Ecuador should strengthen the training of public
officials and modernize registration systems.
It is
essential to reflect on the balance between the autonomy of the testator and
the safeguarding of the heirs; while the Peruvian model favors equity through
rigorous regulations, in Ecuador there is a legal tradition that values
personal freedom in the management of assets, this freedom should not be used
as a means to exclude vulnerable heirs, such as children or the elderly, an
intermediate solution could be to allow the authentic testator to be the
obligation to notify all forced heirs and to register these actions
in a centralized system.
Conclusions
It is
concluded that the regulation of anticipated inheritance presents substantial
differences between Ecuador and Peru; while in Peru the regulations are clearly
defined in the Civil Code, in Ecuador it is limited to the general provisions
on donations, which generates legal uncertainty and potential conflicts; this
contrast highlights the importance of having a specific regulatory framework to
guarantee equity in the distribution of assets.
It is
evident that the lack of regulation in the Ecuadorian legal system with regard
to the integration of anticipated inheritance as well as the calculation of the
legitimate portion weakens the protection of the rights of forced heirs; on the
other hand, the Peruvian model ensures more rigorous control by requiring
formalities such as public deeds and registration, thus reinforcing
transparency and predictability in patrimonial acts.
It is
determined that the implementation of a specific regulation in Ecuador would
make it possible to overcome this lack of regulations, guarantee legal
certainty, and avoid and overcome possible social problems that affect families
due to possible property disputes; in this way the nucleus of society would not
be affected; therefore, it is proposed to reform the Ecuadorian Civil Code to
include an article that defines anticipated inheritance as the transfer of
property to forced heirs during their lifetime, attributable to the legal
share; this reform must require formalization by means of a public deed and its
registration in the Property Registry.
It is
identified that, in relation to the objectives of the study, the strengths and
weaknesses of the compared regulatory frameworks have been determined,
proposing specific reforms that would improve the effectiveness and equity of
the Ecuadorian inheritance system; these reforms focus on guaranteeing the
protection of forced heirs and facilitating the estate planning of the
deceased.
It is
emphasized that this analysis invites future research on the impact of the
implementation of specific regulations in Ecuador; deepening the study of
regional regulatory systems can provide valuable perspectives for designing a
legal framework that reinforces legal certainty and favors a fair and efficient
distribution of wealth.
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