In association with Flores & Valenzuela, Spencer Global Law handles International Family Law matters across multiple jurisdictions, with core expertise in international parental abduction, international divorce, and cross-border succession and inheritance.
Spencer Global Law, in association with Flores & Valenzuela, offers specialized legal services in the field of International Family Law, drawing on more than 20 years of experience handling cases across multiple jurisdictions worldwide.
Our practice has extended to a wide range of countries, including the United States, the United Kingdom, Canada, Australia, New Zealand, the Netherlands, South Africa, France, Italy, Germany, Malta, Peru, Colombia, and Venezuela, among others.
Our attorneys have participated in international legal teams to manage complex cross-border matters, with particular expertise in international parental abduction, international divorce, and cross-border succession and inheritance.
The increasing mobility of people and the growing prevalence of family relationships that cross national borders have made international family law a discipline of particular technical complexity and steadily increasing demand. This area requires the simultaneous command of Chilean domestic law, applicable international treaties, and the principles of private international law that determine, in each case, which law applies, which court has jurisdiction, and how foreign judgments may be recognized and enforced in Chile — or, conversely, how Chilean judgments may obtain recognition abroad.
Spencer Global Law, in association with Flores & Valenzuela, advises and represents clients in divorce proceedings with international elements — where one or both spouses are nationals, residents, or domiciliaries of different countries — determining the competent jurisdiction and applicable law in accordance with the relevant conflict-of-law rules, and ensuring that the judgment rendered is legally effective not only in Chile but in every jurisdiction where the parties maintain ties, assets, or interests.
In international contexts, agreements between spouses or domestic partners — covering spousal support, child custody, financial compensation, or division of assets — require careful legal structuring to ensure recognition and enforceability across more than one legal system. Spencer Global Law, in association with Flores & Valenzuela, advises on the drafting and formalization of these agreements, taking into account the substantive and formal requirements of each relevant jurisdiction to secure the broadest possible cross-border effectiveness.
Foreign judgments on divorce, spousal or child support, custody, and related matters do not take effect in Chile automatically — they require formal recognition through exequatur, a procedure before the Supreme Court of Chile that grants enforceability to judgments rendered by foreign courts within Chilean territory. This matter is of particular importance for foreign citizens with legal ties to Chile, where it is common for rulings issued abroad to require legal effect for purposes of remarriage, estate rights, asset division, or enforcement of support obligations. Spencer Global Law, in association with Flores & Valenzuela, handles these proceedings with full command of the procedural requirements established by the Code of Civil Procedure and the applicable international treaties, managing each case with the technical precision the process demands.
The wrongful removal or retention of a child in a country other than that of their habitual residence is one of the most serious and time-critical situations addressed by international family law. Chile is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which establishes a mechanism for the prompt return of the child to the country of their habitual residence. Spencer Global Law, in association with Flores & Valenzuela, acts with the urgency these situations demand, managing return proceedings before the competent courts and the Chilean Central Authority, advising affected parents on their rights and available courses of action, and representing those who must respond to return applications where the exceptions provided under the Convention may apply.
Chilean inheritance law establishes a system of mandatory inheritors — spouses, children, parents, and other close relatives — whose rights to a fixed portion of any estate cannot be excluded by will, and whose claims must be satisfied before any other distribution may take place. For foreign citizens with assets in Chile, this system operates differently from the testamentary freedom recognized in many common law countries, and estate planning must account for both Chilean law and the legal systems of any other jurisdiction where the client maintains property or interests. Wills in Chile are subject to strict formal requirements — they must be executed before a notary public and comply with specific procedural rules — and a will that fails to meet these requirements, or that does not provide for mandatory inheritors, is considered void or without legal effect. Spencer Global Law, in association with Flores & Valenzuela, advises foreign citizens on will drafting, estate planning structures, and probate proceedings in Chile, with particular attention to the unique legal and tax considerations that affect foreign owners of Chilean assets and their heirs across multiple jurisdictions.
Chilean inheritance law establishes a system of mandatory inheritors — spouses, children, parents, and other close relatives — whose rights to a fixed portion of any estate cannot be excluded by will, and whose claims must be satisfied before any other distribution may take place. Wills in Chile are subject to strict formal requirements and must be executed before a notary public in compliance with specific procedural rules; a will that fails to meet these requirements, or that does not provide for mandatory inheritors, is considered void or without legal effect under Chilean law. For foreign citizens with assets in Chile, these rules interact with the laws of any other jurisdiction where the client maintains property or interests, creating planning considerations that require simultaneous command of more than one legal system. Spencer Global Law, in association with Flores & Valenzuela, advises on will drafting, estate planning structures, and probate proceedings in Chile, with particular attention to the legal and tax considerations that affect foreign owners of Chilean assets and their heirs across multiple jurisdictions.
Chilean law establishes strict documentation requirements for minors entering or leaving the country — including notarized authorization from both parents in all cases, regardless of custody arrangements — and recognizes the right of non-custodial parents to maintain a relationship with their child, a principle that can affect the ability of one parent to travel internationally with a minor even when full custody has been granted by a court. What constitutes “custody” varies significantly from jurisdiction to jurisdiction, and foreign custody agreements may not be interpreted in Chile in the same way they are understood in the country where they were issued — a distinction that has been the subject of litigation reaching the United States Supreme Court involving conflicts between Chilean and U.S. interpretations of custody under the Hague Convention. Spencer Global Law, in association with Flores & Valenzuela, advises and represents clients in international child custody matters, reviews foreign custody agreements prior to travel to or from Chile, and prepares the notarized travel authorizations required under Chilean law, drawing on extensive experience in cross-border custody cases across multiple jurisdictions.
Even though you were divorced outside of Chile, your foreign divorce will not be automatically recognized in Chile. This means for all purposes your former spouse is still your spouse for all legal and practical purposes in Chile until your foreign divorce is recognized or you obtain a divorce in Chile. This includes rights to your estate, and any new marriage will be viewed as illegitimate or illegal until the first divorce is formally accepted under Chilean law.
The basic problem for all married foreigners in Chile is for a divorce to be recognized in Chile, your foreign divorce must not be in contradiction with Chilean law in general and the new divorce laws in particular. This can be highly problematic, as many other countries recognize various forms of “quick divorce” that are not recognized under Chilean law as they do not comply with the requirements of a Chilean divorce must follow.
There are essentially two options to do this in most cases. If you already have a divorce decree in another country, it must be reviewed and accept by the Chilean Supreme Court in a proceeding known as “exequatur”. This has been at best problematic in recent years.
Most of the foreign divorce decrees that have been rejected by the Chilean Supreme Court are because they failed to comply with the Chilean requirements for divorce in regards to the time required for formal legal separation, or that it failed to be issued as a formal court ruling in front of a judge. Informal or substituted proceedings such as mediation, administrative procedures, and even annulments will not be accepted. That means even if you got a “quick divorce” in another country and the form of the divorce process does not fully meet all of the requirements under the Chile's divorce laws, your divorce will not be recognized in Chile.
Assuming your foreign divorce was rejected or obviously will not comply with Chilean law, your only other option is to initiate a second formal divorce proceedings in Chile. This means complying with the legal separation time and other requirements under Chilean law. The legal separation might be proven simply by presenting the foreign divorce decree, even if it is insufficient for a fully recognized divorce in Chile. It is proof of the separation. It can help establish the time formal separation started. The time requirements for a full legal separation can range from 1 to 5 years, even when both parties are in complete agreement before you can initiate a formal divorce proceedings. Among many other things, you must also show that support and alimony was fully satisfied during that time.
Now this is not fair in many respects, but part of the design of the new divorce law was to stop people from “shopping” for a more divorce friendly jurisdiction in another country in an attempt to get around the restricted nature of divorce in Chile.
Obviously there is still much to be desired in the Chilean divorce law, especially in relation to foreign divorces; but, progress has been made with recent changes in 2009 to correct some of the bigger issues related to recognition of foreign divorces. There are many foreign divorces that the Chilean Supreme Court previously rejected, that might now be recognized. This is especially true for those seeking to have divorces recognized in Chile that occurred before 2004 (year of the first divorce law). Many people that have consulted an attorney on this matter in the past or had their divorce rejected by the Supreme Court, should perhaps consider investigating again to see if the new amended laws will help their situation.
The full implications of the Chilean divorce laws go far beyond the scope of this short article. We strongly encourage all foreigners in Chile to seek competent legal council in Chile that can advise you regarding divorce and marriage laws in Chile; and, if needed, assist any legal council you might have retained in a country outside of Chile about the effects your foreign divorce proceedings might have in Chile.
Chilean Attorney Zandra Valenzuela is a graduate of the University of Chile Law School, a Professor of International law, and Senior Legal Council at Spencer Global Chile.
Spencer Global's attorneys regularly publish on the legal considerations facing families with ties to more than one country — from cross-border divorce and custody to the recognition of foreign judgments and inheritance in Chile. The following articles draw on the firm's direct experience, in association with Flores & Valenzuela, advising clients across multiple jurisdictions.
Sooner or later, everyone with assets in Chile is going to pass on. It is critical that foreigners understand as owners of real estate and other assets in Chile exactly how the inheritance laws in Chile work. Estate planning is very different in Chile, due to the tradition of mandatory inheritors under Chilean law. This overview we hope will be of assistance for getting started with estate planning, and also for those family members that may be heirs to estates under the jurisdiction of Chile.
The basic order of inheritance in Chile after someone dies is that of surviving spouse, children, parents, grandparents, siblings, and then cousins. This also includes rights of spouses and children for their direct ascendant or decedent to inherit.
You are allowed to give a certain percentage of your estate in a will to whom ever you like, but for the most part you can not avoid giving these family members with mandatory inheritor rights a portion of your estate by just drafting a will. There are certain exceptions in the law, such as in the case of murder of one family member by another; but they are rare and unusual exceptions.
If you wish to transfer property to a specific family members, you will need to do it while you are still alive or through some intermediate structure such as a corporation. Even then, you must be careful as there are certain restrictions on how those assets are passed. Handled incorrectly and the transfers could be contested or voided by the courts.
The right to testate ( to make one´s will known ) and to whom the testator can leave their assets is structured in Chile to protect both the family and the overall social order.
In Chile the granting of a will is very restricted and formal. There is no absolute freedom to dispose of ones assets as one wishes, because the law compels the testator to make some forced designations in favor of specific people. If the will does not comply with fulfilling these requirements under Chilean law, the will is considered without force or void. Likewise, if no will exists, those forced heirs do not loose their right to inherit their mandatory portion of the estate.
Further, you must meet Chilean laws regarding formalities for the creation of a will. It is considered a “formal” or “solemn” act, under Chilean law, and thus creation of a will to be valid must meet very specific processes and procedures in relation to how the will is handled by a notary public, whom may qualify as a witness to the will, their residency requirements, the language used, and the methods of declaration among many other things.
In most cases, wills in Chile must be conducted as a formal declarations in front of a notary public ( minster of faith ), and must be drafted meeting very specific requirements to be valid, and the witnesses must meet very specific requirements regarding their residency ( municipal residency and national residency ). Also the natural language you use to declare your will is important (e.g. Spanish vs English). These become all the more complicated when foreigners are involved as either the testator or as the witnesses. You must make sure your friends or family members qualify to be a witnesses under Chilean law for the purposes of signing a will.
The first mandatory proportioning of the estate covers all debts related to alimony and child support that the deceased may have owed up to the time of their death. These must be deducted from the total assets of the estate before any distribution of other assets to other heirs. The remaining assets must be divided and apportioned to specific heirs according to the regulations established by Chilean Law.
Fifty percent of the assets must go to the rightful heirs also called “forced heirs” (spouse, direct descendants, or ascendants). Twenty five percent of the assets are called the “quarter of improvement” and it may be given to any of the forced heirs at the discretion of the tester. The last twenty five percent is called “quarter of free disposition” and may be given to anyone the testator wishes.
The assets and debts of the deceased are passed on according to the following order of succession:
First Order heirs: The direct descendants and surviving spouse. In the case where these descendants are also deceased, the rightful heirs are their direct descendants. In other word the testators grandchildren.
Second Order heirs: If there are no direct descendants, the rightful heirs are the parents or the closest related ascendants and the surviving spouse. In the case where the father, mother and surviving spouse are deceased, the rightful heirs would be the testators living grandparent. In the case that they are not alive, then it becomes the testator´s living great grandparents.
Third Order heirs: If any of the above are deceased, the rightful heirs are the testator´s brothers and sisters, either from the same mother and father or as half-siblings. In the case where they are deceased, the rightful heirs would be the brother´s or sister´s children. In other words, the testator´s nieces and nephews.
Fourth Order heirs: If any of the above are deceased or do no exist, the rightful heirs would correspond to the closest blood relative descended from the same origin without being a direct ascendant or descendant of the testator. This would be uncles and aunts, and if they are deceased, the cousins.
This article is only intended to give you the most basic appreciation of the complex nature of estate planning in Chile. We strongly urge you to seek the competent legal assistance of a qualified Chilean attorney in relation to Chilean inheritance laws and wills in Chile. We also urge you to find an attorney able to deal with the unique issues that effect foreigners specifically in regards to estate planning in Chile and effects it may have on your estate planning outside of Chile. With time and planning there are ways to insure that much of your estate goes to the people you wish after you pass away. Again, time and careful planning are essential to protect your assets in Chile.
International probate and inheritance considerations in Chile for family of citizens, foreigners, and residents of Chile. How to decide if it is worth the time and expense to probate an inheritance in Chile in terms of legal fees, inheritance tax, real estate tax, and court costs.
Probating an estate in Chile for a foreign inheritor or estate may be a costly and slow process, so it is important to first determine is it worth the time and expense. We will for the present purposes, set aside any emotional value, which may be a considerable consideration when it comes to deciding to probate an estate in Chile, and we only focus on determining the financial implications. That said, an emotional motivation for assuming the cost of probate in Chile, is a very legitimate reason to push forward with probating an estate in Chile even if the value of estate is less than the costs.
First, it needs to be understood, that in most cases any inheritance involving a foreign jurisdiction or a foreigner with assets in Chile, with very few exceptions, must go through the court system in Chile rather than the simpler procedure completed through only the civil registry in Chile.
The first thing to be applied is the international legal principle of “last domicile”, to determine the jurisdiction that will have authority over the estate of the deceased. Essentially, where the estate is to be probated. Certain things in Chile are exempt from this legal principle such as real estate as this is covered by principles of national sovereignty, as well as other property located within the territory of the country.
That said, the constitution of Chile expressly protects the rights of foreigners over private property, in an equal manner to that of Chilean citizens and residents. Thus, for example, a foreigner that buys or owns land in Chile, even after their death outside of Chile, will have the same rights as Chilean citizens and permanent residents in regards to probate of the property in Chile.
In terms of determining return vs. costs, for most estates in Chile, if it includes some sort of real estate or other major asset (e.g. stocks or investments), the value of the asset will generally justify the cost and time involved as long as they have a reasonably good market value. For smaller inheritances, for example a collection of furniture, frequently the costs involved will be far too high to justify the costs of a full probate.
Still, it is important to have the real estate or other assets evaluated and / or appraised to insure you have sufficient margin for error to cover the expenses you may incur during the inheritance probate process, and that you reach an agreement with any other inheritors or parties involved for reimbursement of those expenses incurred by the estate.
Just some of the costs involved before you take possession of the assets in an estate in Chile, beyond fees for your attorney:
Estate Tax: This is calculated in a complex formula by the Chilean tax authority based on many things. Among some of the things they look at is, value of the estate, relationship to the inheritor, number of inheritors, legal value of the property (not the same as market value), economic status of the inheritors, and so on. This estate tax calculation is typically conducted by the Chilean Tax authority (SII), at a rather late stage in the probate process in Chile. In many cases the inheritance tax is very low, to nothing. Some assets of an estate, purchased with funds earned outside of Chile, may not have any tax associated with probating the estate.
Debts: Any property tax or other debts associated with the property to third-parties may need to be paid, prior to completing a transfer. For example, a pending mortgage that must be negotiated with the bank.
Will and Estate Attorney: Depending on the structure of the estate, and stipulations of the will (if there is a will), you may need to pay a third-party attorney charged with the distribution of the assets by the deceased. By law, this is typically capped at 20% of the value of the estate. An estate being required to use a specific attorney for probating the assets of the estate is not very common anymore in Chilean wills; however, this attorney will represent the estate, and is not the same as having your own attorney to represent your interest. Again, this will depend on if there is a will, and how the will was drafted.
Courts: Court costs and official document registration and publications.
Title transfers: In the case of things like real estate or cars, there may be new title registration involved, prior to the property being sold.
If a property is to be liquidated, and cash distributed to the inheritors, there may be also standard sales costs of the property such as commissions to a real estate agent.
When determining the economic viability of initiating a probate case in Chile, below is the general formula that is applied. Again, there may be many other factors involved, but this is a good place to start when evaluating the process of probate in Chile.
Value of assets / (number of inheritors and their percentage rights to the estate) – estimated costs = viability of probate
For example, let’s say there is a property in Chile worth $100,000 U.S. There are three inheritors. Under Chile’s mandatory inheritor laws, let’s say one spouse is alive, and three adult children. All would be considered “mandatory inheritors” under Chilean law. The wife is entitled to half. The two children are entitled to one third each, of the remaining half of the estate. In this case, it might be a close call regarding costs, as long as all parties are in agreement regarding sharing costs and common goal of expediting the probate process and sale as efficiently as possible, the costs should be fairly reasonable.
If you have any questions regarding your rights to an estate in Chile, please contact us to conduct an evaluation on the value of the estate and an estimate of costs of probating the estate. Also, if you own property or assets in Chile and are concerned about conducting proper estate planning, please feel free to contact us for assistance with protecting your assets.
Chile is a party to the Hague convention on Child abduction. Foreigners should plan carefully when traveling to or from Chile with minor Children. The documentation required should be prepared well in advance of any trip, and should be reviewed before new trip to insure that the documents are current and valid. The international police at the borders of Chile are required to review all travel authorizations for minors entering or leaving Chile.
For parents or guardians, a child must have notarized authorization from both parents to enter or leave the country. Even when both parents are entering or leaving the country with the child, you should have a legalized copy of the child’s birth certificate proving the parental link.
If only one parent is traveling with the child, the other parent must provide legal authorization for the Child to leave the country. This authorization should be current, drafted by an attorney that specializes in international Child custody matters and Chile, and must be notarized at a Chilean notary or consulate.
It should also be noted for parents that are divorced, and have some form of custody agreement, that full custody of a child granted to one parent may not be sufficient. The other parent may still have the right to deny permission to travel in to or out of Chile.
Chile’s child custody laws recognize that there is a right of a child to have relationship with the other parent, and for the other parent to not be denied that relationship, even if they do not have custody. Thus, Chile custody laws are drafted to prevent one parent from taking a child to another jurisdiction where the parent has no legal recourse to challenge custody or exercise the right of the child to have a relationship with the none-custodial parent.
What is meant by “custody” from country to country can vary widely. The family law attorneys at Spencer Global have worked extensively in regards to such international custody cases. For example, we have participated in cases in U.S. Federal court, on appeal to the U.S Supreme Court, involving conflicts of law between Chile’s interpretation of “custody” and the United States interpretation of “custody” under the Hague convention. This matter in regards to U.S. Law and Chilean law is now mostly settled; however, other jurisdictions may have similar issues in regards to the meaning of “custody”. Any foreign custody agreement should be reviewed prior to traveling to Chile with minor Children.
We review the facts of your case and the jurisdictions involved to determine which country's law and courts apply.
We define the legal strategy for the matter — whether divorce, custody, inheritance, or recognition of a foreign judgment — coordinating with Flores & Valenzuela when required.
We represent you before the competent Chilean courts and authorities, including exequatur proceedings when a foreign ruling must be recognized in Chile.
We take the steps necessary to ensure the resulting judgment or agreement is enforceable in every jurisdiction where it matters to you.
Request a call or meeting with our team in Santiago or Southern Chile.
