Wills in the Dominican Republic: Between the Deceased’s Wishes and the Limits of the Law
By Virgilio Santana Ripoll
Few legal decisions are as personal as deciding what will happen to our assets after death. However, in the Dominican Republic, there is still a certain cultural reluctance to discuss wills. The decision is put off, in the hope that “the children will come to an agreement,” or it is simply assumed that the law will adequately resolve any unresolved matters we leave behind.
Judicial experience shows that this is not always the case.
An unplanned estate can turn assets accumulated over a lifetime into the source of years of litigation among siblings, spouses, and other relatives. But making a will does not mean that a person can freely distribute their entire estate either. There is a delicate balance between an individual’s wishes and the protection of certain heirs, and this balance lies at the heart of Dominican probate law.
What exactly is a will?
Article 895 of the Dominican Civil Code defines it as:
“An act by which the testator disposes of all or part of their assets for the time after their death, but which may be revoked.”
The definition contains three essential elements.
First, it is a personal act. No one can make a will on behalf of another person. Second, its property-related effects are intended to take effect after death. And third—perhaps most importantly—the will is revocable.[1]
This last point is often misunderstood.
The person who makes a will does not surrender their assets nor does he or she lose the right to sell, mortgage, or dispose of them during their lifetime. Nor is he or she bound by a decision made years ago. As long as he or she retains the required legal capacity, he or she may modify or revoke the will in accordance with the procedures provided by law.
Making a will, therefore, does not mean parting with one’s estate. It means arranging one’s succession in advance.
Not everything can be left to whomever one wishes
This is likely the most important issue in Dominican probate law.
Private property confers broad powers on its owner, but the freedom to make a will is not absolute.
Our Civil Code protects certain family members through the institution of the reserved share. A portion of the estate is legally reserved and, consequently, not freely disposable by the testator.
Article 913 provides that gifts—whether inter vivos or by will—may not exceed one-half of the estate when the decedent leaves one child; one-third when leaving two; and one-fourth when leaving three or more children.[2]
The difference between these two portions is fundamental:
Legally Reserved Portion: the portion that the law protects for the benefit of certain heirs.
Disposable portion: the portion over which the decedent may freely exercise his or her will within legal limits.
The Supreme Court of Justice has defined the reserved portion precisely as that portion of the estate that is excluded from the decedent’s free disposal, while the remaining portion may be the subject of gifts in favor of an heir or even a third party.[3]
This has significant practical consequences.
A parent with three children cannot simply dispose of their entire estate by will in favor of one of them, their partner, a friend, or an institution and assume that the expression of their will eliminates the rights that the law recognizes for their heirs entitled to the reserved portion.
But neither does it mean that the entire will is necessarily void.
Exceeding the disposable portion does not necessarily invalidate the will
This distinction is particularly important and has been clarified by the Supreme Court of Justice.
The Supreme Court of Justice has established that when a bequest exceeds the disposable portion and affects the statutory share, the legal remedy provided for in Articles 920 et seq. of the Civil Code is, in principle, the reduction of the bequest, not its automatic nullification.[4]
The difference is significant.
Suppose a person could freely dispose of RD$10 million, but bequeathed RD$15 million in a will. The legal issue does not necessarily lead to the complete nullification of the testator’s intent. The purpose of the reduction is to restore the rights protected by the reserved share up to the limits established by law.
As the First Chamber of the Supreme Court explained, the status of a reserved heir does not, in and of itself, have the effect of “nullifying” the legal act performed by the decedent. The bequest may take effect, even if it is subject to reduction to the extent that it exceeds the available share.[5]
This position is consistent with a reasonable principle: to preserve the testator’s will to the extent legally possible without sacrificing the rights that the law reserves for certain heirs.
Before discussing reduction, one must know what the deceased actually left behind
This seemingly obvious point has given rise to significant litigation.
How can it be determined that a will infringed upon the statutory share if we do not first know what the decedent’s total estate was?
The Joint Chambers of the Supreme Court of Justice addressed this issue once again in a decision published in Judicial Bulletin No. 1364, dated July 2024.[6]
The case involved whether a bequest contained in a will respected the statutory share.
The Court considered it relevant that the status of the real property rights alleged to be part of the estate had not been sufficiently proven and that, without a proper determination of the estate’s total assets, it was impossible to correctly establish whether Article 913 of the Civil Code had been respected.
The practical lesson here is extraordinarily important.
It is not enough to look in isolation at the asset listed in the will.
To determine whether the statutory share has been affected, it may be necessary to reconstruct the estate: real property, cash, investments, corporate interests, other assets, countable gifts, and the decedent’s liabilities.
For this reason, a serious will should begin long before sitting down with the notary: it must start with a reasonably complete picture of the estate.
Types of Wills: When a Single Detail Can Change Everything
The Civil Code fundamentally recognizes three forms of wills: the holographic will, the notarized will, and the secret will.[7]
The holographic will is appealing for its simplicity. Article 970 requires that it be written entirely by hand, dated, and signed in the testator’s own handwriting.
It does not require the same notarial structure as a notarized will.
But simple does not necessarily mean secure.
A missing date, doubts regarding the drafting, problems with the signature, loss of the document, or disputes over the testator’s mental capacity can turn a seemingly simple private document into the center of a complex legal dispute.
A notarized will, on the other hand, is subject to the formalities established by Articles 971 et seq. of the Civil Code.
And here, form matters greatly.
Article 1001 provides that the formalities prescribed for the various types of wills must be observed, on pain of nullity.[8]
In probate law, therefore, it is not always sufficient to demonstrate what a person intended to do. It may also be essential to demonstrate that they expressed that intent in the legally required form.
The Testator’s Capacity: A Will Must Be Free and Conscious
Another frequent area of controversy is capacity.
Article 901 of the Civil Code provides that to make an inter vivos gift or a will, one must be of sound mind.[9]
This is not merely a theoretical concern.
In a decision dated August 1, 1979, the Supreme Court of Justice examined the invalidity of an authentic will after the trial court judges, relying on testimony and a medical certificate, determined that the testator was not in a sound mental state at the time of executing it.[10]
Case law has recognized that trial judges have broad discretion to assess whether a will is truly the product of sound judgment and free will.
Decades later, the issue remains as relevant as ever.
When a will is made at an advanced age, during a serious illness, or under circumstances that may later raise doubts about the testator’s mental capacity, properly documenting the conditions existing at the time of execution can be just as important as the drafting of the document itself.
Wills Made Abroad
The Dominican reality adds another dimension: thousands of Dominicans own property in the country but live entirely or partially in the United States, Spain, Canada, or other jurisdictions.
The Civil Code expressly addresses this situation.
Article 999 allows a Dominican citizen residing abroad to make testamentary dispositions through a private instrument in accordance with the rules governing holographic wills or through a notarized instrument in compliance with the formalities required in the place where it is executed.[11]
When such a document is to take effect in the Dominican Republic—particularly with respect to real property—the registration formalities and the rules of private international law must also be considered.
This issue has also been examined by Dominican legal scholars. Helen Peralta specifically analyzed the enforcement of foreign wills in light of Law No. 544-14 on Private International Law, using the Italian holographic will as a reference, in an article published by Gaceta Judicial in May 2022.[12]
In international estate planning, therefore, drafting a will without considering where the assets are located and which laws may apply constitutes an unnecessary risk.
The True Value of a Will
A will should not be viewed as a document reserved for the elderly or exclusively for those with substantial wealth.
A home, land, company stock, bank accounts, investments, or ownership interests in a family business may be sufficient to warrant proper estate planning.
And the more complex the estate, the more thorough the planning must be.
Before drafting a will, it is advisable to answer questions that seem simple but are not always so from a legal standpoint: Which assets actually belong to the testator? Which belong to the marital community? Who are the heirs entitled to a reserved share? What gifts have been made previously? What will happen if a legatee dies first? What will happen to the shares in a family business? Are there assets in different countries?
A poorly drafted will can shift these questions to a judge.
A well-structured will can resolve many of them before a conflict arises.
Ultimately, making a will isn’t about thinking about death. It’s about preventing a lack of foresight from deciding for us.
Dominican law protects certain family rights, but it also recognizes considerable leeway for each person to responsibly organize their estate.
The challenge lies in knowing where individual will ends and where the limits imposed by law begin.
And that is precisely where the difference lies between simply leaving assets and leaving a legally orderly estate.
Notes and References
[1] Dominican Republic, Civil Code, Art. 895. See also Arts. 967 et seq. regarding testamentary dispositions.
[2] Dominican Civil Code, Art. 913. See also Arts. 914 et seq. on the disposable portion and the reserved share.
[3] Supreme Court of Justice, First Chamber, case law on the reserved portion and gifts, Major Rulings of the Supreme Court of Justice, May–August 2022. The Court defines the reserved portion as the portion of the estate that cannot be disposed of by gift and contrasts it with the disposable portion determined in accordance with Art. 913 of the Civil Code.
[4] Ibid. The Supreme Court of Justice notes, in interpreting Articles 920 et seq. of the Civil Code, that in the case of a gift exceeding the available portion, the remedy provided is an action for reduction and not, for that reason alone, the nullity of the entire gift.
[5] Supreme Court of Justice, First Chamber, decision published in the Judicial Bulletin, January 2020. The Court clarified that gifts exceeding the disposable portion remain effective until the corresponding reduction is ordered and that the status of a reserved heir does not automatically nullify the act performed by the decedent.
[6] Supreme Court of Justice, Joint Chambers, Judicial Bulletin No. 1364, July 2024. The decision examines the need to properly determine the estate’s total assets in order to assess whether a testamentary bequest complied with the reserved share established by Article 913 of the Civil Code. The ruling refers, among other precedents, to decisions of the Supreme Court of Justice dated February 6, 2013, and October 29, 2014.
[7] Dominican Civil Code, Art. 969.
[8] Ibid., Articles 970–976 and 1001.
[9] Ibid., Art. 901.
[10] Supreme Court of Justice, Cassation, August 1, 1979, Judicial Bulletin No. 825, p. 1435: “Authentic Will.— Nullity.— Testator who was not of sound mind when the will was executed.” See also the historical case law on wills compiled by the Supreme Court of Justice.
[11] Dominican Civil Code, arts. 999–1000.
[12] Peralta, Helen, “Enforcement of a Foreign Will in Light of Law 544-14 on Private International Law in the Dominican Republic: The Case of the Italian Holographic Will,” Gaceta Judicial, No. 409, May 2022.
Supplementary Bibliography
MAZEAUD, Henri, LĂ©on, and Jean, Lectures on Civil Law, section on successions and gifts.
DOMINICAN REPUBLIC, Civil Code of the Dominican Republic, Book III.
SUPREME COURT OF JUSTICE, Judicial Bulletins and Compilations of Major Rulings in Civil and Succession Matters.
PERALTA, Helen, “Enforcement of a Foreign Will in Light of Law 544-14 on Private International Law in the Dominican Republic,” Judicial Gazette, No. 409, May 2022.
This article is for informational and academic purposes only. Its content does not constitute legal advice regarding a specific case.