In English common law jurisdictions, such as Canada and the United States, registering a property title in joint tenancy — as between a husband and a wife — is the norm. Joint tenancy embodies the principle of right of survivorship. This principle allows surviving spouses to efficiently and effectively transfer the property title into their name as the sole property title holder, following the death of the other, without reference to the provisions of a will and receiving an order of probate.
Usually, such a transfer is effected by the surviving spouse presenting the deceased spouse’s death certificate at the land registry office in the jurisdiction where the property is located. The transfer of the deceased spouse’s interest will be transferred to the surviving spouse within a short period of time.
Costa Rica Civil Law
Costa Rica is a civil law jurisdiction, which does not recognize the legal concept of joint tenancy. When a husband and wife register a property title jointly in Costa Rica, each spouse has a distinct registered interest in the property title as a whole, as tenants in common — known as a “derecho interest”.
This legal concept of tenants in common does not embody the principle of right of survivorship, with each spouse’s registered property title interest being a separate and distinct interest from the other. For a surviving spouse to inherit the deceased spouse’s property interest, the latter’s property title interest must be transferred to the surviving spouse by a public deed prepared and registered by a Costa Rica notary public. This occurs following the probate of a will providing for the subject inheritance.
This provision would also apply where a Costa Rica company was the registered property title holder and a husband and wife were joint shareholders in the company.
It is possible to present to the Costa Rica court, a valid foreign will covering the world assets of a deceased spouse, that has received a court order of probate in the foreign jurisdiction. A request can be made for the court to provide the necessary order for the foreign will to be applied in Costa Rica. The application for such assistance to the Costa Rica court is known as a letters rogatory application.
In my opinion, it is a better practice for a husband and wife to have a Joint Costa Rica will to provide for the surviving spouse to inherit the property title interest. The Costa Rica Will is able to be subordinated to the provisions of a foreign will and limited in its application to Costa Rica assets only. Such a will can be admitted into probate immediately following the death of a spouse and the probate process completed in approximately six to eight months. This permits a much more timely transfer of the deceased spouse’s assets to the surviving spouse.