Succession planning in Argentina: Organising the future is the best legacy
Laura Rozental & Gisela Beltrame
by Laura Rozental and Gisela Beltrame
Discussing death or one's own incapacity is often a taboo, yet in the legal realm, anticipating these events is a fundamental tool for protection. Succession planning is not exclusive to large fortunes – essentially, it consists of handling life's affairs while considering the possibility of retirement and the certainty of death.
In Argentina, the Civil and Commercial Code (CCyC) offers a range of instruments that allow individuals to exercise their autonomy of will, both to protect their assets and to make decisions regarding personal matters related to their health and body.
The four pillars of planning
Organising one's inheritance and personal future rests on four basic pillars that vary according to the age and circumstances of each individual: protection, harmony, personal projection, and transcendence. The central objective is to avoid future conflicts – that moment when “inheritance tears us apart” – and to ensure that the deceased's will is fulfilled, whether to benefit a loved one or to protect a family business.
The patrimonial aspect: tools and limits
In Argentina, the freedom to make a will is not absolute due to the existence of the “legitimate portion” (porción legítima), a part of the estate of which descendants, ascendants, and the spouse cannot be deprived. However, there is room for manoeuvring.
Adequate planning allows, for example, the use of the available portion to improve the share of a forced heir or to benefit a third party. Furthermore, the CCyC allows for a strict improvement in favour of heirs with disabilities (up to one-third of the legitimate portions), ensuring their integration and economic protection.
Among the most used tools are the will, donation (including partition by ascendant), trusts, and pacts regarding future inheritance when the goal is to protect the continuity of a family business. This is vital to prevent the death of the owner from putting the productive unit at risk.
Non-patrimonial planning: health and the body
Perhaps one of the most significant advances in the legal framework is the possibility of planning for non-patrimonial aspects. This includes advance medical directives, currently considered “the star of the notary field”.
According to Article 60 of the CCyC, a fully capable person can anticipate directives regarding their health and designate a person to express consent for medical acts in case they lose their own capacity. This allows, for example, the refusal of hydration or artificial feeding treatments in terminal or irreversible stages, avoiding therapeutic obstinacy. However, the law is clear: directives implying euthanasia are deemed unwritten.
Planning also covers the disposition of one's own body, organ donation (governed by Law 27.447), and funeral arrangements. A person can mandate the mode of their funeral and burial; if they do not, the decision falls to the family, respecting what the deceased would have wanted.
Self-protection and guardianship
What happens if a person foresees their own incapacity? The system allows for self-protection. A capable person can designate, through an advance directive, who will exercise their curatorship (support system). Similarly, parents can appoint tutors for their minor children in the event of their absence.
The international challenge: the “professio iuris”
In a globalised world, where many Argentines hold dual citizenship or assets abroad, planning becomes more complex. This is where Regulation (EU) No 650/2012 of the European Parliament comes into play. This instrument allows citizens to choose the law that will govern their succession (the professio iuris), opting for the law of their nationality instead of the law of their habitual residence.
This choice provides legal certainty and avoids surprises, as it allows the testator to embrace a succession regime that may offer greater freedom of disposition than the law of the country where they reside. However, this is a directed autonomy: one can only opt for the law of a nationality possessed at the time of the choice or at the time of death.
Conclusion
Whether it is to protect a cohabitant (who may invoke the right of free habitation for two years after the partner's death), to secure the future of a child with a disability, or to decide on the end of one's own life, succession planning is an act of responsibility.
As experts point out, organising succession often requires interdisciplinary work among lawyers, notaries, and accountants. The cost of doing nothing is high: letting the law decide for the individual often results in outcomes alien to their true desires and affections.
XLNC member firm Bercún Law FirmBuenos Aires, ArgentinaT: +54 11 4382 3006
Legal
Dra. Laura Rozendal graduated from the Faculty of Law at the Catholic University of Argentina in 1999, and in 2008 completed a specialisation in business administration at the University of El Salvador in conjunction with the State University of New York at Albany, graduating with one of the highest GPAs in her class. She joined Bercún in 2007 as a senior attorney and was later appointed associate in 2012.Contact Laura.
Dra. Gisela Paula Beltrame graduated from the University of Buenos Aires Faculty of Law and Social Sciences in 2002. In 2004, she completed a specialisation in business legal consulting at the University of Buenos Aires. In 2017, she earned a diploma in bankruptcy and insolvency proceedings from the Buenos Aires City Bar Association. In 2003, she joined Bercún Abogados as a junior lawyer, progressing through the ranks to become a senior lawyer. In 2012, she was appointed associate.Contact Gisela.
