Historically, the nuclear family – consisting of a married heterosexual couple and their biological children – was the predominant model recognized by law.
In recent decades, family models have undergone a notable transformation, reflecting social, cultural and economic changes. However, Legislation has not always evolved at the same pacegenerating challenges in the protection and recognition of these new family schemes and their legal and patrimonial implications.
When the law fully contemplates a family model, legal and patrimonial issues are made much easier for its members. Those who are legally married, those who have recognized filiation, etc. are “within the system” and therefore have more tools and mechanisms to protect their rights. Estate planning is also made easier for them and even the damages are reduced if there was none.
Those of us who are professionally dedicated to estate planning know that not only those families, but all, They need to take advantage of all the tools available to a greater or lesser extent.
Wills, trusts, prenuptial agreements, marriage agreements, cohabitation agreements are some of the tools that the law makes available to everyone. Naturally, it is the advisor’s job to adapt them to the situation, needs and particularities of each specific family.
Many people are asking the law to adapt as quickly as possible to the new challenges and needs generated by the most recent family models. The same can be said for judges.
But what we often fail to notice is that these families must also be as close as possible to the law as it stands today and to what the courts have been ruling on. We said before that certain families have their situation “more contemplated” in the law. This makes a possible lack of planning have less harmful consequences, because the law will normally have planned what happens in those cases that it did protect.
Planning (recommended in any case) becomes almost an obligation for those families whose situation is not yet fully protected by law.If there is no planning in these cases, the consequences can be very damaging and the solution (if there is one) can only come after years of administrative and judicial struggle and the resulting costs.
For example, in our countries, a will is not required for my assets to pass to my spouse or children upon my death, because the law has a mechanism in place for this. But (without a will) the law will not normally consider cohabitants or other people who would have been intended to benefit as heirs. Naturally, a person in this situation should seriously consider what would happen upon his or her death, and seek advice on how to make a will that is legitimate in his or her country.
In short, just as we need to ask for adjustments in the legislation and the judges who apply it, we also need to help ourselves and our loved ones by informing ourselves of the planning tools available and making the most of them to protect them and our assets.
Director of SFI Fiduciary Services
Source: Ambito
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