Wealth structuring and family protocol: Legal perspective and implementation tools
Dr Eduardo Héctor Bercún
by Dr Eduardo Héctor Bercún
1. IntroductionIn professional legal practice—particularly in the corporate, insolvency, estate, and family law fields—wealth structuring has become an increasingly sought-after area of advice, not only for high-net-worth individuals but also for SME entrepreneurs, family-owned businesses, and independent professionals.Its primary objective is to preserve, structure, and transfer assets and rights efficiently, reducing legal, tax, and economic risks.
2. Succession Law Framework: Key PrinciplesThe Argentine Civil and Commercial Code (CCCN) establishes a forced heirship regime (Articles 2444–2460 CCCN), limiting free disposal to one-third of the estate (“disposable portion”), with the remainder reserved for forced heirs.
The system distinguishes:
Intestate succession: applies when there is no valid will or the will does not dispose of the entire estate.
Testamentary succession: allows the ordering of asset transmission while respecting forced heirship rights. Valid forms include the holographic will (Article 2477 CCCN) and the notarial will executed as a public deed (Article 2479 CCCN). The former requires handwritten drafting, date, and signature. Case law (CNCiv., Chamber I, 25/10/2018, C., M. L. re testamentary succession) has admitted certain flexibility in formal requirements when unequivocal testamentary intent and the testator’s capacity are proven.
Community and separate property:The surviving spouse automatically receives 50% of community property (Article 2430 CCCN) and inherits from the remaining 50%.Regarding separate property, the surviving spouse inherits according to the applicable order of succession.
3. Matrimonial Property RegimesUntil 1 August 2015, the Código de Vélez Sarsfield only recognized the community property regime (Articles 1271–1315, repealed). The CCCN introduced the option to choose between community property and separation of property (Articles 446–505 CCCN) through a matrimonial agreement, either before or during the marriage.The separation of property regime is particularly useful to safeguard assets from risks derived from one spouse’s business or professional activities.
4. Wealth Structuring: Operational DefinitionFrom a legal perspective, wealth structuring comprises a set of acts, contracts, and legal vehicles designed to:
Identify and assess the estate (inventory of assets, title, liabilities, and contingencies).
Select legal structures that allow risk isolation and efficient management (companies, trusts, foundations, marital agreements).
Plan asset transmission inter vivos or mortis causa, avoiding prolonged co-ownership and family disputes.
Optimize the tax burden, within legal boundaries, in accordance with the asset profile and relevant jurisdictions.
Establish governance and control mechanisms (corporate or family governing bodies, appointment of managers).
5. Main Legal Tools
Commercial companies: risk segregation and tax efficiency.
Trusts (Articles 1666–1707 CCCN):
Administrative trust: shields assets from personal contingencies.
Testamentary trust: structures the transfer and preservation of assets.
Security trust: safeguards family or business receivables.
Wills and legacies: orderly disposition of the disposable portion, coordinated with trusts.
Gifts with reserved usufruct: anticipates transfer while retaining use and enjoyment.
Matrimonial agreements: define the property regime and allocate assets.
6. Family Protocol: Conceptual Framework and Legal StandingA family protocol is a contractual instrument (Article 958 CCCN) entered into by members of a business-owning family to regulate relations between the family, ownership, and the business.In Argentina, it lacks statutory recognition but derives binding force from the principle of freedom of contract and the rules governing associative agreements (Articles 1442 et seq. CCCN).It may be complemented by corporate by-law amendments, shareholders’ agreements (Article 15 Ley General de Sociedades), and testamentary or trust arrangements.
Typical contents include:
Guiding principles and family values.
Rules for succession and generational transfer.
Conditions for the entry and exit of family members in the business.
Share/ownership transfer restrictions.
Profit distribution policies.
Dispute resolution methods (mediation, arbitration).
7. Final Considerations for Legal PracticeExperience in succession and corporate litigation demonstrates that preventive planning is substantially more cost-effective and efficient than post-dispute resolution.The specialised attorney must combine expertise in succession, corporate, matrimonial, and tax law, adopting an interdisciplinary and intergenerational approach.
In high-conflict and economically volatile contexts, wealth structuring and family protocols are not merely preservation mechanisms but essential legal governance instruments, critical to the continuity of family wealth and business operations.
XLNC member firm Bercún Law FirmBuenos Aires, ArgentinaT: +54 11 4382 3006
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Dr Eduardo Héctor Bercún, attorney, is the director and owner of ESTUDIO BERCÚN-ABOGADOS (Bercún Law Firm). This prestigious firm, founded in 1948, offers national and international legal advice in all branches of law. It is comprised of experienced and highly qualified professionals, all with extensive experience in this firm, which guarantees exclusive client knowledge and attention, always striving to innovate and committed to providing exceptional service. Contact Dr Eduardo Héctor Bercún.
