CIVIL LAW FRAMEWORK
The following explains how this benefit works, its legal requirements, and practical precautions every heir or testator should understand.
LEGAL PERSONALITY BEFORE BIRTH
Bolivian law establishes that full legal personality begins at birth. However, it also introduces a favorable legal fiction for the unborn by considering them as born for all matters that may benefit them, in accordance with Article 1 of the Civil Code. This provision allows an unborn child to hold certain rights, such as the right to inherit, provided the child is born alive, regardless of whether the birth is natural or by cesarean section.
INHERITANCE CAPACITY OF THE NASCITURUS UNDER BOLIVIAN LAW
According to Article 1008 of the Civil Code, both those already born and those conceived at the time of the decedent’s death have the capacity to inherit. This means:
- Existence at the time of death: It is sufficient for the baby to be in gestation when the deceased passes away to be considered an heir. In other words, birth is not a requirement at the time of death—only intrauterine life is.
- Presumption of conception: The same rule presumes, unless proven otherwise, that a child born alive within 300 days after the death of the property owner was conceived in due time. This presumption simplifies the work of notaries and courts in confirming the heir’s legitimacy.
- Appointment of future heirs: Bolivian law also allows a person to name as heirs those children not yet conceived, provided the direct parent is alive at the time of the will. This tool is particularly useful for individuals seeking to ensure protection for future descendants in estate planning.
LEGAL REQUIREMENTS TO INHERIT BEFORE BIRTH IN BOLIVIA
According to the Civil Code provisions, the following conditions must be met:
- Live birth: Inheritance rights are granted only if the child is born alive, even if only briefly. (Art. 1 C.C.)
- Proof of kinship: Parent-child relationships must be documented through medical records or a birth certificate.
- Acceptance of inheritance: The inheritance must be accepted by the parents or legal guardians on behalf of the child before a competent authority.
HOW TO PROTECT THE INHERITANCE RIGHTS OF AN UNBORN CHILD IN BOLIVIA
Bolivian legislation provides mechanisms to safeguard assets intended for the unborn child while their rights are confirmed. These include:
- Preventive registration of property to block unauthorized transfers.
- Judicial administration or appointment of a special guardian in case of disputes.
- Reserve of inheritance shares to secure the portion potentially due to the unborn child until live birth is confirmed.
These measures are designed to prevent other heirs from disposing of assets that may ultimately belong to the child.
TESTAMENTARY CLAUSES FOR UNBORN CHILDREN
In practice, many testators include unborn children in their wills. For example, if Carlos dies leaving Ana four months pregnant, the child’s potential share must be reserved. This portion remains “frozen” until the child is born. If the baby is born alive, they inherit; if not, the reserved share is redistributed among the remaining heirs according to general inheritance rules.
In summary, Bolivian law—primarily Articles 1 and 1008 of the Civil Code—grants inheritance capacity to the unborn, provided the condition of live birth is met. This legal framework strengthens family legal security and prevents gaps in asset distribution.
Our firm specializes in inheritance law and the legal protection of unborn children. If you are facing issues related to these matters, contact us today for expert legal guidance.
Frequently Asked Questions (FAQs)
Is it mandatory to mention the unborn child in the will?
No, the law protects them even if they are not explicitly named, but including them helps avoid legal disputes.
What happens if the baby is not born alive?
Their reserved share is distributed among the other heirs according to the legal order of succession.
Can the mother manage the inheritance before birth?
Only as an administrator; she cannot sell or dispose of assets belonging to the unborn child without court approval.
Are medical proofs of conception required?
Generally, a medical certificate of pregnancy is sufficient unless challenged.
How is the statutory share for the unborn child calculated?
The same portion is reserved as would be for a child already born, based on the total estate.
The content of this article does not reflect the technical opinion of Rigoberto Paredes & Associates and should not be considered a substitute for legal advice. The information presented herein corresponds to the date of publication and may be outdated at the time of reading. Rigoberto Paredes & Associates assumes no responsibility for keeping the information in this article up to date, as legal regulations may change over time.
