Inheritance Laws in Cape Verde
In Cape Verde, inheritance laws are primarily governed by the Civil Code of the country, which is based on Portuguese civil law traditions. The laws cover both testate (with a will) and intestate (without a will) succession, as well as the rights of heirs and the administration of estates.
Key Aspects of Inheritance Laws in Cape Verde:
1. Legal Framework
The inheritance laws in Cape Verde are outlined in the Civil Code of Cape Verde, which is largely influenced by the Portuguese legal system. The laws governing inheritance in Cape Verde are based on forced heirship principles, meaning certain family members are entitled to inherit a portion of the deceased's estate, regardless of what a will may specify.
2. Testate Succession (With a Will)
A person can create a will in Cape Verde to decide how their estate will be distributed upon their death. However, there are limitations, particularly concerning forced heirs.
Formal Requirements for a Will:
- The will must be written and signed by the testator (person making the will).
- It must be witnessed by at least two witnesses who are not beneficiaries of the will.
- The testator must be of sound mind and at least 18 years old.
Forced Heirship:
Cape Verdean inheritance law follows the forced heirship principle, which means that certain heirs, such as children and spouses, cannot be disinherited entirely. They are entitled to a legally fixed portion of the estate, regardless of the terms of the will. The exact share depends on the specific family situation and the number of forced heirs.
The Reserved Portion:
- Children: In Cape Verde, the children of the deceased are entitled to a reserved portion of the estate. The portion may vary depending on the number of children, but it typically cannot be entirely bypassed by the testator’s will.
- Spouses: The surviving spouse also has a reserved portion under Cape Verde's inheritance laws, ensuring they are not left destitute. The surviving spouse's share may vary depending on whether there are surviving children or other heirs.
3. Intestate Succession (Without a Will)
When someone dies intestate (without a will), Cape Verde’s Civil Code dictates how the estate will be divided. Intestate succession follows a clear hierarchy of heirs:
- First priority: The children and spouse. The estate will be divided between the surviving spouse and children, with the exact division depending on the number of heirs. In general, the children inherit the majority, and the spouse receives a share.
- Second priority: If there are no surviving children or spouse, the estate will go to the parents or siblings of the deceased.
- Third priority: If there are no direct family members (spouse, children, parents, or siblings), the estate may pass to other extended family members, such as aunts, uncles, or cousins.
4. Spousal Rights in Inheritance
The surviving spouse has significant inheritance rights under Cape Verdean law. Depending on the number of children and other heirs, the spouse may receive:
- A portion of the estate, which can vary.
- The spouse’s share is often determined based on whether the couple was married in community of property (i.e., sharing property) or separate property.
If the surviving spouse was married under a community property system, they may be entitled to half of the deceased’s estate. If the couple was married under separate property rules, the surviving spouse’s share might be less.
5. Children's Rights
- Legitimate children (born to married parents) have the right to inherit equally, unless the deceased has explicitly arranged otherwise in a will.
- Illegitimate children (born out of wedlock) also have inheritance rights, though the process of inheritance can be more complex and may require proof of paternity.
6. Inheritance of Property
- Real Property: Inheritance of real property (e.g., land or houses) is subject to the same rules as other types of property. If the property is located within Cape Verde, the inheritance laws will apply. The executor of the estate is responsible for ensuring that real property is transferred to the rightful heirs.
- Personal Property: Personal belongings are typically distributed according to the terms of the will or, in the absence of a will, according to intestate succession laws.
7. Probate Process and Estate Administration
The probate process in Cape Verde involves the following steps:
- Probate Petition: A family member or other interested party petitions the court to begin the probate process, usually by submitting the deceased’s will (if one exists).
- Executor’s Role: If the deceased appointed an executor in their will, that person is responsible for managing the estate, including settling debts, taxes, and distributing assets to heirs.
- Debt Settlement: Before distributing the estate, all debts and taxes owed by the deceased must be paid.
- Distribution: Once the debts are settled, the remaining estate is distributed according to the will or intestate succession laws.
8. Inheritance Disputes
Disputes may arise if:
- Heirs contest the validity of the will, claiming it was made under undue influence or when the testator lacked mental capacity.
- A family member claims that the distribution is unfair or violates their forced heirship rights.
- The estate is not properly administered, leading to disagreements over how assets are distributed.
9. Inheritance Taxes
Cape Verde does not impose an inheritance tax on estates, so there is no taxation on the transfer of property from the deceased to their heirs. However, there may be administrative fees and court costs associated with the probate process.
10. Foreign Nationals and Inheritance in Cape Verde
Foreign nationals who die in Cape Verde or who own property in Cape Verde are subject to Cape Verdean inheritance laws. However, foreign nationals can create a will to specify how their estate should be distributed, and the Cape Verdean courts will recognize foreign wills if they meet the required formalities.
In cases where the deceased was not a resident of Cape Verde, the probate process may be more complex, and it may require legal assistance to ensure that the estate is administered according to both Cape Verdean law and the deceased’s home country laws.
Conclusion
Cape Verde’s inheritance laws are guided by the Civil Code and follow forced heirship principles, ensuring that spouses and children are entitled to a portion of the estate. The probate process involves the validation of a will, if one exists, or the application of intestate succession rules if there is no will. Inheritance disputes can arise if heirs feel their rights have been violated, and the executor of the estate plays a central role in ensuring proper administration. Foreign nationals can also create wills in Cape Verde to ensure their property is passed on according to their wishes.
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