Inheritance and Family Law

Martínez-Echevarría has been advising on this interesting branch of law since its foundation. It comes as no surprise that many of the firm’s lawyers have studied this area in depth as a result of their preparation for different Civil Service examinations. Furthermore, our holistic approach to address clients’ needs in other areas – for example commercial – entails that sometimes these also need to be addressed here through the creation of family agreements or protocols.

I.- FAMILY LAW.

Family Law is one of the most particular and sensitive areas of Civil Law, not only because of the delicate nature of its content but also because it usually involves minors and their future.

Martínez-Echevarría has extensive experience in advising on Family Law with a highly specialised team that is used to dealing with all kinds of situations, some of them very complex related to gender-based violence or domestic abuse. Our team of lawyers handles these complex issues with sensitivity, empathy and compassion.

Our advice always includes a preliminary orientation consultation to clarify the legal route to take and, on many occasions, to offer reassurance to the client.

Martínez-Echevarría provides assistance in the following areas:

A.- MATRIMONIAL MATTERS.

1.- Matrimonial matters deriving from the celebration of the marriage and prior to the same. Our firm advises on the granting of marriage contracts where the future spouses stipulate the matrimonial property regime to govern their property relationships, as well as prenuptial agreements or protocols. We also provide advice in the case of international marriages, providing legal assistance on their effects and processing the necessary paperwork.

2.- Matters arising from the breakdown of the marriage bond.

Martínez-Echevarría has been advising since its foundation on all issues arising from the breakdown of the marriage bond and its consequences, both personal and property-related.

(i) Annulments through civil proceedings.
(ii) Divorces, both consensual and contentious.
(iii) Application for and adoption of provisional and/or definitive measures.
(iv) Negotiation, in or out of court, of alimony and maintenance allowances.
(v) Negotiation, in or out of court, of guardianship and custody of minor children.
(vi) Negotiation, in or out of court, of visiting arrangements.
(vii) Negotiation of the awarding of the family home.
(viii) Negotiation, in or out of court, of the modification of provisional or definitive measures.
(ix) Liquidation, in or out of court, of the matrimonial property regime, whether it be community of acquisitions or participation in acquisitions, or readjustments between assets in the case of separation of property.

Specifically, Martínez-Echevarría advises on international divorces with conflicts between the legislations of different countries that determine the law regulating the validity of the marriage and its form as well as the personal and property effects of the marriage.

Martínez-Echevarría also provides, as a separate service, advice to women who are victims of gender-based violence or domestic abuse, with immediate assistance at hearings and applications for restraining orders or non molestation orders. This is a matter especially linked to Criminal Law, and both Departments of the Firm are fully coordinated with each other, albeit our lawyers specialising in matrimonial matters have a very specific criminal training that enables them to assess each specific case extremely well.

3.- Advice on arrangements for minors.

On many occasions the break-up of a marriage has consequences with respect to minors, children of the marriage. As already mentioned, Martínez-Echevarría advises on obtaining  custody of the children by one of the parents or shared custody, in or out of court. We can also assist with negotiations regarding visiting regimes and alimony, and provide civil and criminal advice in the event of non-payment of maintenance allowances, non-compliance with visiting arrangements or legal kidnapping.

B.- PARENTAGE ACTIONS.
Martínez-Echevarría advises on all issues that may arise in relation to declarations of parentage and challenges to the same.

C.- ADOPTIONS AND FOSTERING.
Martínez-Echevarría advises on all types of adoption and foster care procedures as well as on all the legal proceedings and actions that usually form part of these situations.

D.- INCAPACITATION.
Throughout the year, our firm advises many clients who are indirectly or directly involved in incapacitation proceedings or others, such as the declaration of prodigality, which does not require the incapacitation of the affected person.

(i) Court proceedings for declarations of incapacity.
(ii) Court proceedings for de facto guardianship.
(iii) Court proceedings for declarations of prodigality.
(iv) Advice on the appointment of guardians, both of property and of persons.
(v) Advice on the appointment of de facto guardians.
(vi) Advice on the appointment of custodians / guardians ad litem.
(vii) Advice to guardians.
(viii) Advice to guardians on the rendering of accounts.
(ix) Advice on the removal of guardians.

  1. DECLARATIONS OF ABSENCE AND DEATH.

Upon the disappearance of a person, the Law establishes a series of legal situations on the basis of which, and after certain time periods have elapsed, the disappearance acquires legal status which unfolds a series of legal effects related to the administration of their assets, the opening of their succession and the change of marital status of their spouse.  Martínez-Echevarría advises on all these procedures and their implications in other branches of law.

II.- INHERITANCE LAW

Martínez-Echevarría provides comprehensive legal services in Private Law and, specifically, in Inheritance Law, a speciality of Civil Law closely linked to Family Law. We have a team of professionals with extensive experience, in complete coordination with Departments as important in this area of Law as Tax Law.

As is well known, the notary public is an expert in this branch of law, providing effective advice and controlling the legality of the most important legal transactions in inheritance practice: wills and partition. However, sometimes this advice may not be sufficient in the case of agreed or amicable succession, and even less so in the case of inheritances through Court proceedings, which are completely outside the notary’s area of competence.  This is where the advice of a good legal team is of great importance. And it can make a difference at all levels.

In general, our Inheritance Law team advises our clients from the very beginning, that is to say, from when the death occurs.

  • First of all, through a system of initial orientative consultations,
  • By handling all preliminary administrative aspects,
  • Advising on the preparation of the notarial declaration of intestate heirs in the absence of a will if necessary.
  • Drafting the corresponding partition document as well as processing the paperwork before the Land, Company and Patent and Trademark Registries.
  • Our comprehensive advice includes all tax implications: preparation and settlement of Inheritance Tax and Tax on the Increase of Value of Urban Land (plusvalía).

1.- Prior advice. Substantive and tax planning

An inheritance (succession causa mortis) involves the liquidation of an estate and, as with any liquidation, for example that of a matrimonial property regime of community of acquisitions or that of a legal person (company, association, etc.), it often requires prior planning which may require  advice from a professional. This advice begins with the foresighted preparation of a suitable will which, while respecting the law, meets the personal and financial interests of the testator/testatrix and his/her family.

Advice on inheritance matters at this level is part of the comprehensive advice in the field of private law provided by our Family Offices. Martínez-Echevarría advises families or family groups on the administration and distribution or, where appropriate, liquidation of family estates organised as communities of acquisitions or through a corporate structure. In addition to the prior configuration of the estate structure, our lawyers in this Department are able to ensure that this structure and the administration system chosen by the client will be passed on to the next generation through instruments such as wills, succession agreements, modification of articles of association, para-social agreements, donations and trusts.

The configuration of the estate will in many cases determine the type of advice to be provided (business, industrial, agricultural, real estate, artistic or stock market), and also to be taken into account are the number of persons called to the inheritance, its characteristics and the international or non-international nature of the succession.

This advice, moreover, must not only respond to the needs of each family or business group or each client, but must also ensure the most scrupulous respect for the law and for the obligatory rights of forced heirs which always diminish a productive estate or subject its administration to collegiate discretion that can, in the end, be very detrimental.

Furthermore, the planning of any succession requires looking into the applicable taxation, given that, in many cases, it is taxation that will determine the scope of action of the specialist in Inheritance Law when trying to obtain the most fiscally favourable legal treatment for the client. The Inheritance Law team at Martínez-Echevarría works hand in hand with the Tax Law Department so that from the outset we can provide advice in a comprehensive and coordinated manner.

2.- Inheritance partition.

An inheritance necessarily results in the restructuring of an estate. Sometimes in its liquidation and in the creation of new ones. Even when there is a sole heir with no distribution of assets, the inheritance has to face a tax liquidation procedure which, if not controlled, may even entail the liquidation of companies or production units.

In these cases, Martínez-Echevarría’s   Inheritance Law team advises and assists in all matters relating to the appointment and/or execution of powers of the estate partitioner to avoid obstacles and vetoes in the partition by any of the co-heirs. The intervention here of a professional – usually a lawyer trusted by the deceased – is highly advisable. When the estate partitioner is a lay person, in practice, his/her performance always relies on that of a professional lawyer in all phases: inventory, appraisal and adjudication of the inheritance. Martínez-Echevarría and its lawyers have been executors and estate partitioners in some of the most important inheritances in Spain, in Madrid and other Autonomous Regions and abroad. Our firm’s client portfolio is partly formed by important families of the high society and entrepreneurs and our lawyers are frequently assisting them in different matters.

The services provided by the firm’s Inheritance Law Practice include advice on the sale of jewellery, paintings, decorative arts and goods of artistic value in national and international auction houses; obtaining certificates of antiquity and CITES, licences and export permits for antiques and works of art and contractual and real estate advice.

Unlike other countries in which the notary is the real executor and liquidator of the inheritance (France) or in which there are intermediaries who assume the administration and hand over of the assets (Anglo-Saxon Trusts), in our system, immediate succession takes place and the heir assumes rights, obligations and the capacity to manoeuvre. Here, too, the advice of a team of specialist lawyers is often necessary to defend the interests of the various parties involved (heirs, forced heirs, usufructuary widowers and legatees) and against creditors or contractual counterparties. Martínez-Echevarría is a renowned firm in this sector, participating throughout the year in dozens of inheritance and probate proceedings, advising all those involved, regardless of their position.

In all these cases, either as an estate partitioner or as a party lawyer, a professional must necessarily master all branches of law linked to an estate succession that includes, to a greater or lesser extent, a liquidation: Rights in rem, specifically in real estate; obligations and contracts and administrative law. Everything will depend on the structure of the estate and the obligations associated with the succession. The members of the Inheritance Law team at Martínez-Echevarría have also worked in other Practices and are familiar with all areas of Civil Law.

Once again, this shows the tremendous importance of being in complete coordination with the Tax Law Practice, which has specialists in Inheritance and Donations Law, being able to provide services in any part of the country, regardless of the tax system.

3.- The procedural side of Inheritance Law. Court proceedings.
An inheritance upon death has, on the other hand, an enormous procedural aspect as many successions are heard before the Courts of Justice.
This is where the lawyer’s work is essential.  Court proceedings for the division of assets, including inheritance proceedings, are complex in all their phases and require the direct control of a good legal management team that not only masters the substantive and adjective law but also, in practice, can optimise expert evidence or make the most of all the resources available in the case.

Martínez-Echevarría is a firm with extensive experience in litigation, and inheritance is no exception. The firm has advised hundreds of clients on, among other matters, the following:

  • Challenges to wills and donations upon death;
  • Probate and notarisation of holographic wills;
  • Disinheritance and preterition of heirs.
  • Reduction of inofficious donations;
  • Claiming of legacies, forced heirships, supplementary parts of forced heirships and inheritance rights;
  • Formation, contestation and rescission of partitions.

4.- Inheritances and International Private Law.

From the point of view of both domestic and international law systems, we should bear in mind that the connecting point can lead to the application of Regional or Special Law within Spain, or foreign law. At present, Community regulations, and with good criteria, impose the domicile or residence of the deceased as the connecting point in the inheritance upon death (and not the nationality as in our Civil Code), which, in practice, is the most functional. However, on many occasions, the different inheritance systems of each legislation coexist – for example, by the application of the lex rei sitae for each real property included in the inheritance – which requires the lawyer to be flexible – by directing or being directed by – their international colleagues. It is not unusual for an Anglo-Saxon inheritance governed by a trust to have to be coupled with the inheritance of a real  property located in Spain (on the coast, for example), in compliance with the legal requirements of both countries. The advice of an international professional is essential here.

Martínez-Echevarría has a legal team of English and French-speaking professionals who have participated in the processing of inheritances with international links, especially in Europe and America, both in the US and Canada as well as Mexico and other Latin American countries. The Firm has a network of alliances with other firms in practically all European and American countries and the members of the Inheritance Law Department form part of the STEP network, specialists in trusts, estate partitioners and experts in Inheritance Law.

5.- Inheritances and Tax Law.

Last but not least, Martínez-Echevarría is aware that closely linked to the practice of inheritance law is the coordination with tax law.
A good firm that is strong in inheritance law must necessarily also be strong in tax law. And Martínez-Echevarría is. Because taxation often comes to condition major inheritances, and thus must always be taken into account both beforehand as well as afterwards.

Notas Jurídicas

Con motivo del estado de alarma se han visto seriamente afectados los tiempos de permanencia de los hijos con los progenitores, no respetándose el régimen de custodia o el régimen de visitas. Al respecto, no existe un criterio unánime por parte de los Juzgados de Familia por lo que, dependiendo del partido judicial competente, los progenitores afectados podrán -en caso de falta de acuerdo- iniciar procedimientos de ejecución de Sentencia para el cumplimiento de las medidas establecidas, o bien solicitar la compensación del tiempo no disfrutado con los menores una vez finalizado el estado de alarma.

Ángela Lomeña

El cumplimiento de medidas económicas fijadas en Sentencia o Convenio Regulador aprobado judicialmente, como es el pago de la pensión de alimentos, no quedan suspendidas pese a la actual situación de estado de alarma. El obligado no queda dispensado de tal obligación pese a que haya quedado mermada su situación desde el punto de vista laboral, o pese a que esté sufriendo la falta de ingresos ante el cese de su actividad. La situación excepcional creada no exime de la obligación de alimentos cara a los hijos.

Si bien los acuerdos entre los progenitores podrían solventar temporalmente esta situación, no hemos de olvidar que la pensión de alimentos es una cuestión de orden público que precisa para su modificación la intervención del Ministerio Fiscal y su aprobación judicial.

Andrés Tallafigo

La crisis provocada por el COVID-19 ha dado lugar a que muchas personas hayan perdido su puesto de trabajo, cerrado sus negocios o, en definitiva, perdido gran parte de su capacidad adquisitiva. La pensión compensatoria reconocida a su exconyuge, a cuyo pago están obligados por Sentencia, muy probablemente ya no sea proporcional a su situación económica actual, lo que permite acudir a un procedimiento judicial de modificación de medidas, cuyo éxito es más que probable, al haber sucedido una modificación sustancial de las circunstancias, tal y como exige la regulación vigente y la jurisprudencia más actual.

Sonia Gea