ARGENTINA Law and Practice Contributed by: Juan McEwan and Agustín Lacoste, McEWAN
dent’s death and the gifts provided for each of the forced heirs at the time the gift was made. The CCCN introduces the concept of improvement, which allows the decedent to reduce the reserved portion to exclusively improve it for disabled heirs, whether they are descendants or ascendants (first part of Section 2448). Section 48 of the CCCN estab - lishes that a disabled person is someone who suffers from a mental or physical disorder, either permanent or prolonged, which – in relation to their age and social environment – entails considerable disadvantages for their family, social, educational or professional inte - gration. Since the forced heirship regime is a public order regime, any provisions or structures used by the par - ties that conflict with the portions under the regime may be challenged under a legal action (collatio bono - rum). There have been precedents in Argentine courts in which forced heirship claims have been admitted against trust assets when the legitimate portion of one of them was infringed. A forced heir cannot be deprived of their legitimate portion by the decedent. However, upon the dece - dent’s death, any of the heirs can file a legal action to exclude another heir by invoking one of the statutory causes for indignity established in Section 2281 of the CCCN (eg, an heir can claim that the decedent was the victim of violence by the heir against whom the action is filed). The onus probandi of the invoked indignity cause is in the hands of the heir filing the action ( acción de indignidad under Section 2283 of the CCCN). Any general agreement entered into by and between future heirs during the deceased’s lifetime is null and void. However, Section 1010 of the CCCN allows agreement over future inheritances if the agreement meets all the following conditions: • it relies on the equity of companies or other busi - ness; • it aims to maintain unity in the management or to prevent/solve conflicts; and
• the dispositions do not deprive forced heirs of their reserved portions, nor do they affect the rights of the spouse or third parties. 2.4 Marital Property Under the CCCN, future spouses have the possibility of opting – by entering marriage conventions – between a shared/marital property regime or a separate prop - erty regime. Section 463 of the CCCN establishes that if no convention is entered into, or if the convention does not set forth any provision regarding the property regime, the traditional shared/marital property regime will be applied. Under this regime, each spouse is entitled to the full management and disposal of their personal assets ( bienes propios ). The management and disposal of shared property ( bienes gananciales ) falls to the spouse who acquired it. However, the other spouse’s consent must be obtained in order to trans - fer recordable assets, shares of stock or businesses (Section 470 of the CCCN). Conventions may be created (Section 446 of the CCCN) for the purpose of: • the designation and appraisal of the goods that each of the future spouses is bringing to the mar - riage; • the admission of debts; • donations made between each other; or • choosing an option considering the regimes con - templated in the CCCN. Section 448 of the CCCN provides that a convention must be executed by public deed ( escritura pública ) in order to be valid. For a convention to be effective towards third parties, the marriage certificate must include a note in the margin specifying the chosen regime. If the spouses decide to change the regime (which they can only do after being married for at least one year), the amendment must also be made by con - vention and by public deed. If creditors are affected by this change, they will have one year from the date that they became aware of the change in which to object to it. When a marriage is terminated (owing to death or divorce), the assets that qualify as shared/marital property are grouped together. After the applicable lia -
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