ARGENTINA Law and Practice Contributed by: Juan McEwan and Agustín Lacoste, McEWAN
tax burden to which they are exposed – PIT, PAT and the recent experience of the Solidarity and Extraordi - nary Contribution ( Aporte Solidario y Extraordinario , or ASE) – will no doubt encourage them to consider succession planning to ease this burden. Regardless of the fiscal efficiency associated with these structures, once assets have been contrib - uted to them, they will not be included in the judi - cial succession process that will be carried out upon the death of the decedent – thereby avoiding several costs involved in the court process. 2.2 International Planning See 2.1 Cultural Considerations in Succession Plan- ning . 2.3 Forced Heirship Laws Argentina has a forced heirship (public order) regime. The forced heirship portion refers to the part of the estate that is reserved for certain heirs by law (ie, forced heirs). This allows for descendants, ascendants and the surviving spouse to have a reserved portion ( la legítima ) in the deceased estate, of which they cannot be deprived either by will ( testamento ) or by any free inter vivos act (gifts) (Section 2444 of the CCCN). The reserved portions are as follows:
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
• descendants – two thirds; • ascendants – one half; and • the surviving spouse – one half.
These portions are calculated by considering the sum of the liquid value of the estate at the time of the dece - 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
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