ARGENTINA Law and Practice Contributed by: Herberto Robinson, McEWAN
vately. The court does not have to address mari - tal regimes in the divorce decree; instead, the parties can privately settle the liquidation of their marital property. They can agree on how to dis - tribute the assets between themselves. Alterna - tively, if needed, either or both parties may file a petition for a judicial liquidation and distribution procedure. The CCC includes two forms of marital estate: property earned or purchased by the husband or wife during the marriage. This marital property can then be classified as marital estate admin - istered by the husband during the marriage and marital estate administered by the wife during the marriage, regardless of who holds title over the specific good. This means that any spouse can hold the title of a property, which is still considered marital estate – although it will be administered by the spouse holding its title. The marital estate also comprises all assets under the names of companies or third parties that have been established using marital assets or because of the liquidation of marital assets. When a marriage is terminated (due to death or divorce), the assets that qualify as shared/ marital property are grouped together. After the applicable liabilities and claims of each spouse have been worked out (which may include com - pensation for the differences in the value of the property), they are divided and distributed equal - ly between the spouses (in case of divorce) or between the heirs and the surviving spouse (in case of death). Trusts Argentine law recognises the concept of trusts. Although Argentina has not signed the Hague Convention on the Law Applicable to Trusts and Their Recognition (1985), some court precedents acknowledge the existence and enforceability of
foreign trusts, provided that such trusts do not violate Argentine public order (eg, rules regard - ing inheritance for descendants and spouses). Regulations or by-laws of a trust cannot override the forced heirship rule. As this rule is part of public order, any provisions or structures (such as trusts) that conflict with it can be challenged in court. Argentine law offers legal remedies for cases where a forced heir has been negatively affected regarding the forced share they are enti - tled to receive. In this context, any heir is entitled to file a collatio bonorum claim, which involves joining the assets together into a common fund. There are precedents from Argentine courts where forced heirship claims have been admit - ted against trust assets where the legitimate por - tion of one of them was infringed. The case of Vogelius, Angelina y otros c/ Vogelius, Federico y otros In this case, the Supreme Court of Argentina ruled that even though a trust was established in the UK with assets located there, the succes - sion must be governed by Argentine civil law. The court addressed the issue of collatio bono - rum (accounting for gifts made during the sett - lor’s lifetime) and determined that a trust created to benefit a forced heir of the settlor might be classified as a gift to that heir made prior to the settlor’s death. Consequently, this trust must be included in the estate’s accounting, as its impli - cations go beyond what is allowed under inherit - ance law. Regarding private international law matters, the court established that even though the trust was governed by UK law, the succession was subject to Argentine law because the deceased was last domiciled in Argentina.
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