PERU Law and Practice Contributed by: Percy Castle, Violeta Moncada, Angel Quispe and Dayana Evangelista, Casahierro Abogados
rules on filiation and on the particular circumstances of the case. 9.2 Same-Sex Marriage In the Peruvian legal system, marriage and de facto unions are legally reserved for opposite-sex couples. Consequently, same-sex couples currently do not enjoy the property or succession effects that the law grants to spouses or cohabitants, nor are they con - sidered forced heirs of one another. Therefore, in the absence of a testamentary disposition, the surviving member of a same-sex couple has no succession rights under the rules of intestate succession, and the decedent’s assets are transferred to his or her relatives in accordance with the order of succession provided for in the Civil Code. For tax purposes, there are no regulations on this matter either. In view of the lack of legal recognition of such unions, same-sex couples usually resort to wealth and suc - cession planning mechanisms in order to protect their interests. Among the most commonly used are tes - tamentary planning, which allows the partner to be benefited with the freely disposable portion or, in the absence of forced heirs, with the entirety of the estate; the acquisition of assets in co-ownership; the use of corporate structures for the holding of assets; as well as the granting of powers of attorney and the advance designation of supports and safeguards to ensure per - sonal and patrimonial assistance in the event of dis - ability or loss of capacity. 9.3 Cohabitation and Unmarried Couples In Peru, de facto unions between a man and a woman free of marital impediment, maintained continuously and permanently for at least two years, are recog - nised by the Civil Code and give rise to a community of property subject, where applicable, to the com - munity property regime. Once cohabitation has been proven, whether by notarial recognition or judicial declaration, cohabitants acquire certain patrimonial and succession rights, including the status of forced heirs, so that, in succession terms, their situation is substantially similar to that of spouses. By contrast, cohabitation relationships that do not meet the legal requirements to qualify as a de facto union do not generate automatic succession rights nor confer the status of forced heirs.
Unlike married couples, cohabiting couples in Peru are not governed by specific tax regulations; there - fore, each partner must report and pay taxes on their own income independently.
10. Charitable Planning 10.1 Charitable Giving
Peru encourages charitable giving through income tax deductions for donations to qualified entities, but these incentives are capped and carefully regulated. For estate planning, the rules mean that philanthropy can reduce taxable income while also shaping suc - cession strategies. Donations made to public sector entities (excluding state–owned companies), accredited international organisations, and non–profit institutions with rec - ognised social purposes – such as charity, social assistance or welfare, education, culture, science, the arts, literature, sports, health, indigenous histori - cal and cultural heritage, and other similar purposes – are deductible from taxable income. The deduction is limited to 10% of net taxable income, and all dona - tions must be supported by official certificates issued by the authorised recipient entity. 10.2 Common Charitable Structures In Peru, income earned by qualifying foundations and non–profit associations is exempt from Income Tax, provided that their constitutive instrument is exclusively dedicated to one or more of the follow - ing purposes: charity, social assistance, education, culture, science, art, literature, sports, politics, trade union activities and/or housing. Both entities must be formed by two or more individuals or legal entities; a foundation can be constituted through a will. After the liquidation process of an association, its remaining assets go to the purpose established in the bylaws, but due to legal prohibition, they are not distributed among its members; while in the case of a foundation, the remaining assets are destined to another founda - tion with a similar purpose or to a public charity, in its absence. Neither of these entities is usually used for the administration of family assets in Peru.
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