COLOMBIA Law and Practice Contributed by: Rodrigo Castillo Cottin, Ana María López and Alejandra Becerra, Rimon, P.C.
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. 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 or 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 per - sonal property and the assets of the community of property as they see fit. However, other dispositions will require, as a rule, the approval of the other spouse. This would be the case with real estate. Colombian law respects both prenuptial and postnup - tial agreements, although they must be granted by public deed. In the case of foreign agreements, the latter are recognised if they are duly notarised and apostilled. 2.5 Transfer of Property The cost basis of property transferred during an indi - vidual’s lifetime is the registered value of the legal act including attributable costs. However, the cost basis of property transferred at death is the cost basis declared by the deceased as of 31 December of the previous year. 2.6 Transfer of Assets: Vehicle and Planning Mechanisms From a tax perspective, there are no mechanisms available to help the transfer of assets to younger generations, tax-free. As a rule, inheritances or legacies are considered as capital gains, taxed at a 15% rate. However, cer - tain structures may be used to obtain tax deferral or reduce the taxable base. This should be analysed on a case-by-case basis.
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