Asset Protection: Understanding the Importance of the Non-Communicability Clause

In this edition, William Heuseler, Global Head of Wealth Planning, analyzes the non-communicability clause, an essential legal instrument in estate planning. This mechanism can protect donated or inherited assets from being shared with spouses.

Main highlights:

• Definition and Application: The non-communicability clause is used to protect donated or inherited assets, preventing the beneficiaries' spouses from having rights to them. It can be included in donations or wills, requiring justification in cases of legitimate portions.
• Practical Example: A father donates a property to his married son under a universal community property regime, using the clause to protect the asset in case of divorce. The property is not divided in the marital property, as it is considered a separate asset.
• Fruits of the Assets: Income generated by non-communicable assets, such as rent, is generally communicable. For the income to also be protected, the clause must explicitly include them.
• Extension of the Clause: The protection of the non-communicability clause is limited to the life of the donee or heir. After their death, the assets are transferred according to the applicable property regime, without the restriction.
• Current Jurisprudence: Jurisprudence considers assets with a non-communicability clause as separate, not participating in the division in case of divorce, but the income can be shared if not specified in the clause.
• Importance in Planning: The inclusion of clauses such as the non-communicability clause is crucial in estate planning, allowing donors and testators to effectively protect family assets.