COLOMBIA Law and Practice Contributed by: Rodrigo Castillo Cottin, Ana María López and Alejandra Becerra, Rimon, P.C.
Legitimate Portion The legitimate portion corresponds to a part of the estate assigned by law to the legal heirs. Legal heirs are the deceased’s children or, in their absence, their descendants or ancestors. This portion is obtained by dividing half of the inheritance between all legitimate descendants and the surviving spouse or permanent partner. The legal heirs converge to the succession and are excluded and represented according to the order and rules of the intestate succession. Should there be any legitimate heirs The testator may favour the particular descendant that they prefer, assigning part of the estate in the propor - tion desired. Should there be no legitimate heirs A testator may dispose of a certain part of their wealth, up to half of their estate. Should there be no descend - ants or beneficiaries entitled to inherit, either directly or by representation, the freely disposable portion will represent the entire estate. Otherwise, the Colombian state will inherit the entire estate, through the Colom - bian Family Welfare Institute. 2.4 Marital Property The general rule for marital property is the commu - nity of property regime, which automatically comes into effect for all marriages and remains so until the community of property is dissolved either because of death, judicial decision or as result of free will. In this regime, the spouses commonly own community property. It is not similar to co-ownership because the spouses (joint owners) do not possess a share in the property but are owners of the community property. Certain assets acquired by the spouses before mar - riage are considered as individual assets. However, any income, profits or increases in those assets’ value, derived from the individual property (including income generated by assets transferred to foundations and trusts), are part of the community property. The right of a spouse to unilaterally dispose of assets is unlimited. A spouse is entitled to dispose of person - al property and the assets of the community of prop -
rules on forced heirship are mandatory and apply to the estate of the individuals (both national and foreign) whose last residence was Colombia. This transfer of wealth may provide various challenges from a tax and estate planning perspective when sev - eral jurisdictions are involved. Colombian courts usu - ally apply local law in respect of real personal property Colombian rules on forced heirship are mandatory and apply to the estates of all individuals (national and foreign) whose last place of domicile was Colombia. Colombian and foreign heirs have the same rights and are entitled to equal treatment in Colombian probate proceedings. The Colombian Civil Code forces the testator to assign certain compulsory portions, appli - cable to half of their estate, even against their will. located in Colombian territory. 2.3 Forced Heirship Laws
The compulsory portions are: • maintenance provided by law; • the marital portion; and • the legitimate portion. Maintenance Provided by Law
A compulsory portion is assigned for the subsistence of the beneficiary in a way that corresponds to their standard of living. Individuals entitled to maintenance include the deceased’s spouse, descendants per stirpes, ancestors or siblings. The amount of mainte - nance is assessed and declared by a judge. Marital Portion The marital portion corresponds to a part of the estate assigned by law to the surviving spouse or permanent partner lacking the necessary means for subsistence. Taking into account the existence of any legitimate descendants, the surviving spouse or partner will be included among the deceased’s heirs (children) and will receive a “marital portion” corresponding to a share of the estate equal to the portion to be inherited by each legitimate descendant.
136 CHAMBERS.COM
Powered by FlippingBook