PERU Law and Practice Contributed by: Camilo Maruy, Maite Colmenter, Roberto Polo and Llanet Gaslac, Rebaza, Alcázar & De Las Casas
for elder individuals. The Law also includes measures for the prevention of neglect and violence against the elderly. 9. Planning for Non-Traditional Families 9.1 Children In Peru, children born out of wedlock as well as adopt - ed children have the same legal rights as children born within marriage. Legal rights are applicable ‒ includ - ing inheritance rights, maintenance and other filiation rights ‒ against natural parents, adoptive parents and relatives. If a parent does not recognise an individual as a son/daughter, but such parental relationship is established by a court ruling, the aforementioned legal rights will apply to the children. Under Peruvian law, children conceived before the death of a parent are entitled to the same legal rights as a child born after the death of a parent. Although Peruvian law does not expressly regulate the rights of children by surrogacy, the Peruvian General Health Law establishes that the genetic mother and the surrogate mother must be the same person. Tra - ditionally, surrogate mothers have no genetic link to the child born by surrogacy. This regulation presents a problem in determining the filiation of children born via surrogacy. Peruvian law does not regulate the rights of posthu - mously conceived children (children conceived after the death of a biological parent). In principle, they would not have filiation rights against the deceased biological parent. However, such children may still have non-forced heir rights under Peruvian law, pro - vided the deceased biological parent provided as such in a valid written document. In Peru, the recognition of a child depends on the reg - istration before the competent authority, or by court ruling. 9.2 Same-Sex Marriage In Peru, same-sex marriage is not recognised. Pres - ently, Peruvian regulation and jurisprudence is quite restrictive on this matter.
Some planning mechanisms used for same-sex cou - ples include the following. • Local fideicomisos or wills: through which an indi - vidual can dispose of their assets in favour of their partner. At the time of executing these documents, it is possible to allocate more than the portion that is not reserved for legitimate heirs ( tercio de libre disposición ). However, if legitimate heirs exist at the time of the decease of the settlor’s or testator’s death, the will or trust may be challenged for nullity, and the rights of legitimate heirs may be recog - nised by a judicial decision. • Co-ownership of assets in favour of the couple: the transfer of assets during lifetime in favour of both partners is also common in order to safeguard their rights over such assets in the event of the death of one partner. In Peru, de facto unions ( union de hecho ) between a man and a woman are legally recognised. Provided certain conditions are met (ie, proven cohabitation for more than two years without legal impediments), the de facto union can confer the same rights and ben - efits as marriage. Under this arrangement, the com - munity property regime applies, and the couple will also acquire the reserved portion rights applicable to forced heirs under Peruvian law. Peruvian tax law encourages charitable giving by allowing individuals and corporate taxpayers to deduct donations made to government entities and qualified non-profit organisations, provided that the recipient’s purpose involves at least one of the following areas: charity, social assistance, education, culture, science, art, literature, sports, health, or national heritage. Such donations are deductible for income tax pur - poses up to a limit of 10% of the donor’s net taxable income. However, in order to qualify for this tax ben - efit, the recipient organisation must be duly registered with the Peruvian Tax Authority (SUNAT) as an author - ised recipient of donations. 10. Charitable Planning 10.1 Charitable Giving
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