Same Sex Marriage Recognition in Mexican Probate cases
The issue of same sex marriages has been controversial around the world and no more so than here in Mexico. While the Mexican Supreme Court has stated that people of the same sex have the right to marry, and certain states have eliminated verbiage in their civil codes that would impede same sex marriages, the reality is that it still remains very difficult.
Many civil registries will not perform same sex marriages and when a death occurs, many refuse to place the same sex spouse´s name on the death certificate as the surviving spouse.
I filed an intestate probate case in the Civil Court in Chapala on May 27, 2014 presenting the Mexican death certificate and the apostilled and translated marriage certificate from California.
The court accepted the filing and jurisdiction on June 4, 2014 and ordered notifications and requests be sent to the US consulate, Ministerio Publico in Guadalajara, National Will Registry, local Public Property Registry, State Archive of Public Instruments as well as to the Agente Social who is the watchdog over the courts in family law cases. The judge also ordered notices to be published in newspapers of major circulation for 30 days.
Over the next few months the requests came back answered that there existed no will and no heirs came forward. The local Agente Social said it was the first case of its type that he has seen and asked me for a copy of my pleadings so he could study all the international treaties and caselaw I used. He also said good work and that he would sign off on the case.
Then we asked the court to rule and designate my client as sole and universal heir and executor over the estate of his deceased husband on February 10, 2015. We again reiterated and listed all the international treaties to which Mexico was a signatory as well as caselaw.
Today, March 10, 2015 I received a notification from the Chapala civil court that they granted our request for my client to be the sole and universal heir and executor over the estate of his deceased husband.
This was the first time the court had a request for an intestate probate recognizing a same sex marriage performed in California and recognized it in Mexico granting the surviving same sex spouse their fair share of the decedent’s assets.
I told the court to get used to it as this might have been the first time but certainly not the last. Now we have to prepare the inventories and appraisals and then present the division plan to the court for its approval.