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213 11 Mexico was a pioneer with respect to married women’s property rights in Latin America, in a number of ways. In the nineteenth century, Mexico was the first country to offer couples a formal choice with respect to the marital regime governing marriage. Although, as in the colonial period, partial community property remained the default, after 1870 couples could also choose to marry under the separation-of-property regime. Moreover, after 1928 its partial-communityproperty regime became one of the most flexible in the region, giving couples a great deal of choice in terms of alternative arrangements regarding the ownership and management of marital property. Most notable from a feminist perspective is that, over the course of the twentieth century, Mexico led the way in instituting the legal figure of the dual-headed household, in which both husband and wife have equal rights to represent the household and manage its affairs. With respect to inheritance, Mexico was also in the forefront in departing from the colonial legacy of forced heirs, introducing complete testamentary freedom in 1884. The nation remains one of the retrogrades, nonetheless, with respect to the inheritance rights of spouses under intestate succession. Over the course of the twentieth century, most Latin American countries gradually elevated the position of spouses, so that they would have at least equal rights to those of a child, and, in the absence of living children or parents, inherit all of the deceased’s assets. In Mexico, if there are living children, the surviving spouse must prove economic need to inherit anything; moreover, in the absence of living children or parents of the deceased, the spouse must share the inheritance with the deceased’s siblings. Married Women’s Property Rights in Mexico A Comparative Latin American Perspective and Research Agenda CARMEN DIANA DEERE Chap-11.qxd 4/7/07 10:59 AM Page 213 The primary objective of this chapter is to analyze the similarities and differences in married women’s property rights in Mexico in comparison to those in other Latin American countries. In analyzing the process of reform of marital and inheritance regimes, my interest is in discerning the extent to which these promote gender-progressive change. Specifically, I focus on whether these legal changes promote women’s: economic autonomy (the capacity to make their own choices and decisions); bargaining power within the family (their ability to negotiate within marriage and influence outcomes); and fall-back position, or exit options, so that women can survive outside marriage. Given the lack of comparative analysis until recently, and the notable lack of empirical work on these issues, the question of whether variations in marital and inheritance regimes make a difference in practice cannot yet be addressed. Drawing on recent advances in feminist theory, this paper suggests a series of propositions that merit further research, and offers some tentative conclusions regarding married women’s property rights in Mexico in a comparative perspective. Marital Regimes and Their Reform In colonial Hispanic America the default marital regime was partial community property (gananciales, the participation-in-profits regime).1 There was a distinction among three types of property: the husband’s, the wife’s, and the community (or common) property of the couple. The individual property consisted of what each spouse had owned prior to marriage, in addition to inheritances and donations received individually while married. Property purchased during the marriage from the income of either spouse constituted the common property (gananciales). The husband, as head of household, managed both the community property and his wife’s (as well as his own) individual property. If the union ended, for whatever reason, the wife gained control over her own property as well as of half the gananciales. The colonial marital regime was flexible, for couples could enter into prenuptial agreements (capitulaciones) with respect to the ownership and management of any specific property or of their entire estates. Thus all property could remain individually owned (as in the separation-of-property regime) or be pooled (as in full community property). In practice few couples availed themselves of this flexibility (Deere and León 2005). In the civil codes promulgated after Independence, most Latin American countries initially maintained partial community property as the default regime. Mexico in 1870 was the first country to innovate in this regard, offering separation of property as a formal option while maintaining partial community property as the default regime. During the period of the liberal revolutions in Central America , Costa Rica (1887), El...

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