The Division of the Estate of the Future Deceased: Anticipating the crisis and avoiding conflict

The division of the estate of the future deceased during their lifetime, regulated by the General Code of Procedure, represents a legal innovation in Colombia. 

The proper, legal, and efficient management of assets, anticipation of crises and conflicts. 

This arrangement allows a person, while still alive, to distribute their estate among their heirs, provided that the rights of third parties, compulsory allocations, and the marital property of the spouse or permanent partner are respected. 

Its implementation seeks to avoid the use of inappropriate legal instruments such as civil trusts or simulation, which were historically used to achieve this end but generated legal uncertainty and violated fundamental rights. 

Relevant Legal Background

Before the entry into force of Law 1564 of 2012 [General Code of Procedure]did not exist a rule that would allow for partition during one's lifetime. People, then, resorted to mechanisms such as: i). Civil trust: It allowed the transfer of assets under resolutory conditions, but could be used to defraud.to heirs and creditors. ii). Simulation: Apparent legal acts were used to conceal donations or transfers, affecting transparency and the rights of third parties. 

Although both figures were legal, they were frequently used abusively, violating principles such as good faith and non-fraud of law. 

Current Regulation of the General Code of Procedure

The General Code of Procedure establishes that partition during one's lifetime must be carried out by means of a public deed, with prior judicial authorization, and respecting the rights of heirs and third parties. This figure: 

• Allows assets to be awarded with or without reservation of usufruct.
• Requires consent from spouse or permanent partner.
• It grants heirs and third parties a period of two years to request rescission if they are affected. 

This procedure is classified as voluntary jurisdiction, and it can be carried out before a notary if all interested parties agree and are fully capable.

The Constitutional Court, in Ruling C-683 of 2014, declared the paragraph of Article 487 to be enforceable. The Court concluded that: 

• The rule does not violate the right to equality of children who are not recognized at the time of partition.
• The protection of third-party rights is guaranteed through judicial licensing and the possibility of termination.
• The figure is consistent with the CGP's objective of simplifying processes and avoiding unnecessary litigation. 

Practical Effects and Other Considerations

In court, the process takes between 5 and 6 months; at a notary's office, between 3 and 4 days. The cost depends on the cadastral valuation of the assets involved. 

Although the concept has been in place since 2012, its application has been limited. The reasons for this include: Lack of knowledge or clarity regarding its regulation. The process is divided between courts and notaries, making it less attractive than other faster options. Insufficient regulation for a procedure with such a significant impact. 

At RSM LEGAL, we have the expertise and experience to assist our individual clients in the advance planning and execution of the division of their assets.