By Yandrey Rodriguez Diaz, Esq.
Cuba is going through one of its tensest social and political moments in recent years. After the unexpected demonstrations of July 11, 2021, the Cuban people live in total uncertainty as to what future awaits the country.
Even under the current conditions, the Cuban community abroad should know that there are legal mechanisms that allow them to retake and maintain certain interests on the island, which today acquires enhanced importance. At any moment, Cuba can turn history around and return to the Cuban emigrant community all of the civil and constitutional rights that have been denied to it for more than 60 years.
It is important, then, that members of the Cuban émigré community pay special attention to the rights they might have, especially the right to own property, and the right to inherit property owned by family members still residing on the island. For example, parents, grandparents, and siblings who today own assets that can be inherited and passed on to Cubans living abroad.
In the Cuban legal system, “inheritance may be transmitted partly by will and partly by provision of the law”. (Article 467.2 of the Cuban Civil Code). Mixed succession is also appropriate, for example, when a will is judicially declared null and void in part, or the will does not include all the testator’s assets (Article 509, paragraph a) and b) of the Cuban Civil Code). Likewise, testamentary and legal succession coexist when any of the named heirs in a will predeceases, resigns, or lacks the legal capacity to inherit.
However, the key to the recovery of these rights, specifically property rights or the right to inherit, lies in the amendments made to Law No. 1312, “Migration Law”, of September 20, 1976. This Law was amended by Decree- of-Law No. 302 of October 11, 2012, and its Regulations were modified by Decree No. 305 of the same date. It should be recalled that many civil rights in Cuba, especially property rights, rights to be a party to certain contracts, family rights, and inheritance rights, have been affected by immigration regulations and the immigration status of Cuban citizens. In essence, Cuban citizens lost their right to own real estate, to inherit, and to make certain contracts just by leaving the country. The fact that the Cuban citizen emigrated and became a resident of another country was considered abandonment, which meant the automatic loss of “resident status” in Cuba, and therefore many civil rights.
Even under this reality, the amendments to the Migration Law in Cuba have left a way that allows Cubans to safeguard those rights. Cubans living abroad now have the legal possibility of owning real estate and inheriting assets that their family or friends own on the island.
Decree No. 305 of October 11, 2012, amending Decree Number 26 “Regulation of the Migration Law” of July 19, 1978, establishes the possibility of reestablishing residence in Cuba (status upon which the aforementioned civil rights are recovered and acquired). Article 48.1 of Decree No. 305 establishes that “Cuban émigré citizens who wish to establish their residence in the national territory request it before the diplomatic or consular representations, or before the processing office of the Ministry of the Interior that corresponds, when they are in Cuba”. This is the so-called “Repatriation” process that the Cuban community abroad should know about today, especially those who emigrated from the island before October 11, 2012. Before that year, the law required one to request the so-called “Carta Blanca” to leave the country definitively, and that process required the delivery of all real and personal property to the Cuban Government after rigorous inventory.
There are two ways to reacquire permanent residence on the island. The first is to make the request from the consulate closest to the place of your residence. Second, if you are on the island, you will need to apply and submit the petition for residency to the offices of the Ministry of the Interior (“MININT” by its acronym in Spanish). In either case, you will have to present your current Cuban passport and a notarized affidavit of a family member or friend declaring that he or she accepts you as a cohabitant in the house he or she owns. This process can take between six months and a year. Once this institution approves the application, the applicant is informed of the obligation to appear before the Ministry of the Interior in order to obtain his/her resident identification card (ID).
Once you have acquired this immigration status in Cuba, you acquire all of the rights that correspond to you by law. I think it is time for the Cuban people to start regaining their rights. I believe that it is time to use the existing legal means to re-establish the family and legal bonds that correspond to the Cuban community, and even living abroad, maintain the historical and family legacy that unites us all to the Island.
This article originally appeared in the Daily Business Review on August 16, 2021