Updated June 16, 2026 · Fabio Castro Forero

Capitulaciones matrimoniales in Colombia: 7 cases where the conversation is worth having before marrying

Raising the subject of capitulaciones matrimoniales (a prenuptial property agreement) is not a sign of distrust: it can be a responsible way to look after a business, family assets, debts and expectations before marrying.

Category Family Law Updated June 16, 2026 Author Fabio Castro Forero

Family Law

Before you marry

Talk about assets, the company and debts before silence turns into conflict Capitulaciones should serve to order expectations, not to improvise a way out once there is already a crisis.

Asset and Estate Management

Capitulaciones matrimoniales in Colombia: 7 cases where the conversation is worth having before the marriage

An uncomfortable conversation that can save years of conflict.

Capitulaciones matrimoniales in Colombia are not a sign of distrust. Used well, they are an adult conversation about assets, the company, debts, housing, inheritances, family contributions and expectations. The real problem is usually leaving those matters unspoken and discovering them during a divorce, a succession proceeding or a business crisis.

There is a legal detail that changes the whole approach: capitulaciones are irrevocable from the day of the marriage. After the marriage, modifying them is exceptional; the Corte Suprema (CSJ SC093-2023) accepted that post-nuptial property adjustments may be possible. That is why the conversation has to happen before, not after. This guide explains in which situations they make the most sense, what can and cannot be agreed, and how to prepare that conversation without damaging the relationship.

In briefThe capitulaciones matrimoniales are agreements entered into by the future spouses before the marriage concerning the assets each of them brings into it and the gifts they wish to make to each other (Código Civil, art. 1771). They are granted by public deed before a notary (art. 1772) and are irrevocable from the day of the marriage: they cannot be altered afterward, even with the consent of everyone who took part in them (art. 1778). In the absence of capitulaciones, the mere fact of the marriage gives rise to the sociedad conyugal by operation of law (art. 1774).

Art. 1771 of the Código Civil — Definition of capitulaciones

“Capitulaciones matrimoniales are the agreements that the spouses enter into before contracting marriage, relating to the assets they bring into it, and to the gifts and concessions they wish to make to each other, whether presently or in the future.”

The rule is precise: the moment is before the marriage. There is no equivalent figure in the Código Civil that can be agreed once the wedding has taken place with the same effects and the same structure.

Asset and Estate Management

The first thing to know: irrevocability changes the calculation

Capitulaciones matrimoniales are entered into before the marriage and govern the assets the future spouses bring into it and the gifts or concessions between them, within the limits set by law. If the couple has already married, the route may be a different one —such as dissolution and liquidation of the sociedad conyugal by mutual agreement, depending on the case—, but they are no longer capitulaciones properly so called.

The point that usually goes unnoticed is the one in article 1778 of the Código Civil: once they have been signed and once the marriage has taken place, those agreements cannot be changed. It does not matter whether both spouses want to change them. It does not matter whether their circumstances have changed completely. The law closes that door from the day of the wedding, although the Corte Suprema (CSJ SC093-2023) accepted that, by lawful routes, post-nuptial property adjustments may be possible.

Art. 1778 of the Código Civil — Irrevocability from the marriage

“Capitulaciones matrimoniales shall not be understood to be irrevocably granted except from the day of the celebration of the marriage; nor, once it has been celebrated, may they be altered, even with the consent of all the persons who took part in them.”

This rule explains why the timing of the conversation is critical: what was not agreed beforehand can no longer be agreed through the same instrument. A later remedy —separation of assets by the judicial route or by mutual agreement raised to a public deed— does exist, but it is a different process, with different costs and different results.

They should be discussed before fixing a date, signing loans or setting up significant property structures.
They cannot affect the minimum rights of the spouses as between themselves or with respect to the descendants they have in common (art. 1773 CC).
They cannot contain stipulations contrary to public morals or to the law.
They are especially useful where there is a company, real property, debts, children from previous relationships or a significant family estate.

Asset and Estate Management

Seven cases where capitulaciones make a great deal of sense

Not every couple needs capitulaciones. The sociedad conyugal that arises from the mere fact of the marriage works well in many situations. But there are scenarios in which the absence of a prior agreement can create serious conflicts —in the company, in the family, with the partners, with the creditors or with the children from an earlier relationship. These are the seven cases where the prior conversation is worth having:

1The business owner whose company predates the marriage. Anyone who holds a SAS (Colombia's simplified stock corporation), a sole-proprietor company, a shareholding or a business of their own before marrying faces a concrete question: did that company enter the sociedad conyugal, or not? The answer depends on what was agreed beforehand. Without capitulaciones, the fruits of that company —dividends, salaries, appreciation in value— may fall under the rules of the sociedad conyugal. With well-drafted capitulaciones, the couple can separate ownership of the shares from the income the company generates during the marriage, or set clear rules on reinvestment and contributions to the household.

2The professional with student debt. ICETEX loans (Colombia's public student-loan agency), loans from universities, obligations signed before the marriage to finance postgraduate degrees or specializations. Without prior clarity, those debts can create confusion about who is liable and with which assets. Capitulaciones make it possible to place on record the origin of those obligations and how their handling within the marriage is understood, protecting both of them from unforeseen claims.

3The person who receives an inheritance from their family and does not want it mixed in. The Código Civil distinguishes each spouse's separate assets from the assets of the community estate. In principle, an inheritance received during the marriage does not automatically enter the community estate. But the fruits that inheritance generates can indeed enter it. Capitulaciones can set clearer rules on how inherited property is handled, especially where family real property, business shareholdings or investment accounts with a long history within the family are involved.

4The second union with children from the first. When one or both of the future spouses have children from earlier relationships, marriage introduces a layer of property complexity that is not always talked through. Capitulaciones make it possible to establish which assets are to be kept separate with the children of the first marriage in mind, how inheritances will be handled and what rules will govern in the event of separation or death. They do not resolve everything, but they can prevent serious conflicts between the new family and the children from the past.

5A significant difference in assets between the future spouses. When one person brings in a much larger estate than the other, there are questions worth asking out loud: how will the assets bought during the marriage be handled? What happens to the property that was bought beforehand? Who is liable for the debts of the business? Capitulaciones do not have to protect the wealthier person at the other's expense: they can set rules that are fair to both and that prevent arguments when the situation changes.

6The inherited family property that has to stay in the family of origin. A grandfather left a country property. The deed ended up in the names of several heirs, and one of them is about to marry. What happens to that interest in the property? Can the spouse hold rights over it in the event of divorce? Capitulaciones can clarify the treatment of that asset, especially where there are family commitments or an ownership protocol that the other heirs want to preserve.

7A business with outside partners bound by agreements that exclude marital claimants. Some shareholders' agreements or company bylaws include clauses restricting the entry of third parties —including spouses— as holders of shares or as parties with an interest in the liquidation of the company. If one of the future spouses is tied to a company of that kind, capitulaciones can be a way of aligning their marital situation with the obligations they already assumed toward their partners, before the marriage creates a tension that nobody anticipated.

Asset and Estate Management

What should be clear before drafting

Capitulaciones matrimoniales in Colombia work best when they grow out of a full conversation, not out of a cold list of assets. The couple has to understand what exists before the marriage, what could grow during the relationship, which debts come from earlier and what third parties will contribute. Where business assets are involved, the discussion has to separate shares, appreciation in value, dividends, salaries, loans to the company and reinvestment.

It is also worth talking about expectations. One person may accept that a company predating the marriage stays separate, but expect household income to be handled under transparent rules. Another may contribute money from their family toward a home and want it made clear whether that money was a loan, a gift, a contribution to both or an advance on an inheritance. Those conversations are uncomfortable at the outset, but far less painful than reconstructing them years later.

Sensitive topic	Question worth asking	Drafting that usually calls for care
Pre-existing company	What happens to shares, appreciation in value, dividends and the founder's salary?	Distinguishing ownership of shares, fruits, remuneration and reinvestment.
Family contribution	Is money from parents or relatives a gift, a loan or a contribution to both?	Supporting documents on the origin of the funds, any obligation to repay and ownership of the asset.
Pre-existing debts	Who is liable for prior obligations and for guarantees already signed?	An inventory of existing obligations, promissory notes, co-debt undertakings and mortgages.
Future home	How will the down payment, the loan, the improvements and the expenses be paid?	Traceability of payments and rules if the relationship ends.
Inheritances or gifts	How is the family origin of the asset received preserved?	Clauses compatible with the law, supporting documents and the handling of fruits.

Asset and Estate Management

The real limits of capitulaciones

Capitulaciones are a planning tool, not a universal solution. Article 1773 of the Código Civil sets out what they cannot contain: stipulations contrary to public morals or to the laws, and likewise no provisions operating to the detriment of the rights or obligations of the spouses as between themselves or with respect to the descendants they have in common. Within that framework, there are several limits worth being clear about.

Art. 1773 of the Código Civil — Limits on the content of capitulaciones

“Capitulaciones matrimoniales shall not contain stipulations contrary to public morals or to the laws. They shall not, therefore, operate to the detriment of the rights and obligations that the laws assign to each spouse with respect to the other or to the descendants they have in common.”

This means that capitulaciones cannot be used to remove the duty of support between spouses, to waive rights of a mandatory character in advance, or to harm the children the couple has in common. Stipulations seeking to defraud creditors are also prohibited. If the discussion is no longer about what was agreed but about payment, see how to claim child support step by step.

They do not fix badly signed debts. If a person is already a co-debtor, a guarantor or a surety endorser, the risk has to be reviewed in the debt document itself, not only in the capitulaciones. The creditor is not bound by what the future spouses agree between themselves.

They do not replace corporate governance. A company needs bylaws, a shareholders' agreement, minutes and rules of management. The capitulación does not govern the company on its own, nor does it determine who holds operational control.

They must not hide assets. The value of the figure lies in transparency. Using it to harm creditors or to deceive the partner can open up serious conflicts and may eventually give rise to actions for nullity or revocation.

They cannot be modified after the marriage. This is the limit that most takes people by surprise: once the marriage has taken place, the irrevocability of article 1778 operates by operation of law. A frequent route for changing the property regime after marrying (CSJ SC093-2023, CSJ Sala Civil) is the dissolution and liquidation of the sociedad conyugal by the routes provided in article 1820 of the Código Civil, which is a completely different process.

Asset and Estate Management

How to prepare the conversation without damaging the relationship

The most delicate moment is not the one at the notary's office, but the one before it. The conversation about assets, debts, the company and expectations can feel like a threat to trust, especially when one of the two people has far more wealth than the other. These steps help to structure that conversation so that the result is a genuine agreement, not a document signed under pressure.

Separate emotion from document: first you talk about fears, plans and obligations; afterward it is translated into a deed. Mixing the two levels in the same conversation tends to generate resistance.
Make an honest inventory: assets, debts, companies, expected inheritances, family contributions, loans and guarantees. Neither of the two should arrive at the notary's office with surprises.
Avoid ultimatums: capitulaciones imposed at the last minute, under the pressure of the wedding, tend to leave wounds and weak documents. If the other person signs without properly understanding what they are signing, that agreement has less real value.
Review both sides: it is not only the person with more wealth who is protected; the person who contributes time, care, work or stability is protected too. A good agreement recognizes the value of both contributions.
Leave room for the future: if the company changes, children are born, a home is bought or new partners come in, it may be necessary to update the estate plan by other routes. Capitulaciones cover the moment of the marriage; the life that follows calls for other instruments.

Asset and Estate Management

A good capitulación should be readable without embarrassment

If the document sounds like a punishment, a dispossession or a maneuver, it is probably badly conceived. A good capitulación explains soberly what each person brings in, what they want to protect, what they take on as a couple and which rules prevent future arguments.

A review makes it possible to translate expectations into clear documents: assets, debts, the company, housing, family contributions and limits. The result should not be a document that one person signs reluctantly, but one that both of them understand and stand behind.

It is also worth remembering that capitulaciones are not the only instrument of estate planning. Depending on the case, they can be complemented by shareholders' agreements, a family protocol, the afectación a vivienda familiar (Ley 258 de 1996), the patrimonio de familia inembargable (Ley 70 de 1931) or testamentary provisions. Each operates on a different plane and has its own requirements. See our guide to protecting family assets to understand when each mechanism is appropriate.

Asset and Estate Management

Documents worth gathering before going to the notary's office

The quality of capitulaciones depends on the information available. Where there is a company, it is not enough to say “I have a company”: it is worth reviewing the bylaws, the shareholding structure, basic financial statements, debts, guarantees, trademarks, shareholder loans and existing agreements. Where there is a home, the promise-of-sale agreement, the deed, the loan, the payments, the improvements and the origin of the down payment are reviewed. Where there are family assets, it is documented whether they were given, inherited, lent or bought.

Debts must appear as well. Many couples talk about assets and leave out promissory notes, credit cards, obligations to relatives, student loans, mortgages, surety endorsements and business obligations. A useful capitulación does not touch up the map: it shows the full estate so that both of them sign with sufficient information.

Certificados de tradición (title and encumbrance certificates), deeds and payment records for real property.
Cámara de Comercio (chamber of commerce) certificates, bylaws and shareholding structure.
A list of debts, co-debt undertakings, guarantees, promissory notes and family obligations.
Supporting documents for inheritances, gifts, contributions from parents or separate assets.
Shareholders' agreements, family protocols or transfer restrictions affecting the assets.

Asset and Estate Management

What capitulaciones should not promise

They are not a tool for unfairly leaving someone unprotected, hiding assets, defrauding creditors or replacing every rule of family law. Nor do they, on their own, fix a badly run company, a debt signed without weighing the risk, or an inheritance without documents.

Their value lies in clarity: what each person brings in, what stays separate, what is shared, and which future decisions will require new documents. Used for that, they do their job. Used to deceive or to impose, they create more problems than they were meant to avoid.

Nor is it advisable to sign them without fully understanding what they say. A document that either of the two does not understand is a document that, in a dispute, will produce opposing interpretations. Signing before a notary (in Colombia the notary grants the public deed that these agreements require) adds solemnity, but it does not replace a shared understanding of what is being agreed.

Asset and Estate Management

What changes if there is already a family business

When one of the future spouses holds an interest in a family business, the decision does not rest with the couple alone. There may be bylaws, shareholders' agreements, transfer restrictions, rights of first refusal, company debts, family loans and the expectations of other heirs. The capitulaciones (marital property agreements) must be compatible with that ecosystem; otherwise, the couple signs a document that later collides with the reality of the business.

It is also worth distinguishing control from economic benefit. A person may keep shares or voting rights, yet agree on clear rules about income, contributions to shared life, reinvestment or borrowing. That precision keeps the marriage from turning into a permanent argument over whether the company is “one person's” while its risks or fruits affect both.

One point that often causes confusion: the salaries and emoluments either spouse earns during the marriage form part of the assets of the sociedad conyugal under the general rules of the Código Civil. If the business owner draws a salary from their own company, that salary may enter the common estate. Capitulaciones can address that point, but they must do so in a way that does not collide with the regime of obligations between spouses that the law treats as non-waivable. That is why drafting in these cases calls for specific care. See our guide to the family business and personal assets to go deeper into this topic.

Asset and Estate Management

Questions worth answering together as a couple

Before getting to the lawyer or the notary's office, the couple should have talked these points through. Not every case calls for the same depth, but in most situations involving a company, debts, inheritances or children from a previous relationship, none of these questions should go unanswered.

What assets does each person hold today, and with what supporting documents?
What debts or guarantees exist before the marriage?
Is there a company, shares, trademarks, professional practices, real property or investments?
Will a family member contribute funds, and in what capacity (gift, loan, contribution to one spouse, contribution to both)?
What happens to income from the company during the marriage?
How will improvements to assets belonging to one of the two be handled?
Are there children, heirs or prior family commitments that need to be protected?
Are there shareholders' agreements or restrictions in the bylaws that the couple should know about?

Asset and Estate Management

Mistakes worth avoiding

The most delicate mistake is copying a template without understanding the actual assets. Another is signing late: capitulaciones make sense before the marriage and, as noted, they are irrevocable once the wedding has taken place. It is also risky to confuse love with an absence of documents. A couple can love each other and, at the same time, make clear how a company built over years of work or a property bought by the family is protected.

A mistake that often goes unnoticed is signing capitulaciones that protect only one person. When the agreement is clearly unbalanced, it can breed resentment during the marriage and legal challenges afterward. Another frequent mistake: not checking whether the capitulaciones are consistent with the company's bylaws or the family protocol. A document that says one thing while the shareholders' agreement says another creates a conflict that sooner or later someone will have to resolve.

Finally, the mistake of not updating the estate plan when circumstances change. Capitulaciones are irrevocable, but that does not mean the rest of the property arrangement has to stay frozen. A will, the family protocol, shareholders' agreements and mechanisms for protecting real property are instruments that can indeed be adjusted over time.

Asset and Estate Management

Without capitulaciones versus with capitulaciones: a practical comparison

The table below illustrates how the property situation may change depending on whether capitulaciones were agreed. The specific effects always depend on the documents, the dates, the registrations and the particular circumstances of each case. This table is general guidance, not a prediction about any specific case.

Situation	Without capitulaciones (the sociedad conyugal marital property regime applies by operation of law)	With well-drafted capitulaciones
Company owned before the marriage	The fruits (dividends, salaries) may fall under the rules of the sociedad conyugal.	It is possible to separate ownership of the shares from their fruits during the marriage through agreed rules.
Inheritance received before or during the marriage	The inherited asset can stay separate, but its fruits may enter the community estate.	Clearer rules can be set for handling the inherited asset and its fruits.
Debts predating the marriage	The origin of the debts can create confusion about responsibilities during the marriage.	The origin of the obligations, and how they are to be handled, can be clearly placed on record.
Inherited family property	The interest in the property may give rise to rights for the spouse in the event of divorce.	The asset can be established as separate property, along with the rules governing it within the marriage.
Second union with children from a previous relationship	The marital assets fall under the sociedad conyugal, with less clarity regarding the children from the earlier relationship.	Rules can be set to protect assets with the children from the previous relationship in mind.
Company with outside shareholders	The marriage can create tension with existing shareholders' agreements.	It is possible to align the marital situation with the restrictions agreed with the shareholders.

Asset and Estate Management

Checklist: what can and cannot be agreed

Before drafting the capitulaciones, it is worth reviewing what is allowed and what is not. Check the points that apply to your situation and share this list with your lawyer to guide the conversation.

What can be agreed (within the legal framework):

Declaring separate assets: identifying the assets each person brings into the marriage and wishes to keep as their own.
Regulating the fruits of separate assets: setting rules on whether the fruits of assets held before the marriage will enter the community estate.
Making gifts between the future spouses: article 1771 of the Código Civil allows capitulaciones to include gifts and concessions between the future spouses.
Agreeing rules on assets acquired during the marriage: within legal limits, it is possible to agree how certain future assets will be classified.
Identifying pre-existing debts: placing on record the obligations each person has before the marriage and how they are to be handled.
Setting conditions on contributions from third parties: documenting whether funds from relatives are a gift, a loan or a contribution to one or to both spouses.

What cannot be agreed (limits of art. 1773 CC):

Stipulations contrary to the law or to public morals: any clause that breaches mandatory rules will be void.
Removing obligations between spouses recognized by law: such as the duty of support, which cannot be waived in advance.
Harming the rights of the descendants they have in common: children cannot be left unprotected by what their parents agree before marrying.
Defrauding creditors: capitulaciones cannot be used to place assets beyond the reach of legitimate obligations that already exist.
Being amended after the marriage: once the wedding has taken place, article 1778 closes that door for good.

Art. 1774 of the Código Civil — Silence creates the sociedad conyugal

“In the absence of a written agreement, the sociedad conyugal shall be understood to be contracted by the mere fact of the marriage, in accordance with the provisions of this title.”

This rule has an important practical consequence: if the couple does nothing, the regime that applies automatically is the sociedad conyugal. Choosing a different arrangement requires acting before the marriage. Afterward, the process is different and more complex.

So you can check it yourself

Legal basis cited in this guide

Colombian Código Civil, article 1771 — definition of capitulaciones matrimoniales.
Colombian Código Civil, article 1772 — the escritura pública (public deed) formality.
Colombian Código Civil, article 1773 — limits on the content of capitulaciones.
Colombian Código Civil, article 1774 — the sociedad conyugal as the default regime absent an agreement.
Colombian Código Civil, article 1778 — irrevocability from the day of the marriage.
Colombian Código Civil, article 1820 — grounds for dissolution of the sociedad conyugal.
Ley 54 de 1990 (as amended by Ley 979 de 2005) — unión marital de hecho (de facto marital union: a Colombian statutory institution, not common-law marriage) and sociedad patrimonial.
Ley 258 de 1996 — afectación a vivienda familiar, the family-dwelling encumbrance (mentioned as general framework).
Ley 70 de 1931 — patrimonio de familia inembargable, the unattachable family homestead (mentioned as a complementary mechanism).

Content prepared by Cafore Abogados for general guidance in Colombia. The specific strategy depends on the documents, the family composition, the debts, the ownership of the assets and the circumstances of each case. This information does not replace legal advice on your specific situation. Last editorial review: June 2026.

Before you marry

Talk about assets, the company and debts before silence turns into conflict

Capitulaciones should serve to order expectations, not to improvise a way out once there is already a crisis. Cafore can accompany you in that conversation: reviewing the documents, identifying the critical points and drafting an agreement that both of you understand and stand behind.

We answer your questions

Frequently asked questions about family assets

What is the patrimonio de familia inembargable in Colombia?

The patrimonio de familia inembargable is a figure of Colombian law that protects a home or rural plot by way of a public deed and entry in the land register, placing it beyond the reach of creditors under Ley 70 de 1931. To create it, the property must be held outright by the settlor, free of co-ownership and mortgage, and worth no more than 250 SMLMV (art. 3, as amended by Ley 495 de 1999). Unlike the afectación a vivienda familiar (Ley 258 de 1996), it is created by the settlor alone and does not require both spouses' consent. You may wish to consult a lawyer as to whether your home meets the requirements and how to process it before a notary.

Can a creditor attach a property held as patrimonio de familia?

As a general rule, no. Property held as patrimonio de familia inembargable is placed beyond creditors' reach under Ley 70 de 1931, which declares it unattachable even if the beneficiary becomes insolvent (art. 21) and bars mortgaging it (art. 22). The exception allowing a mortgage to buy, build or improve the home belongs to a different figure, the afectación a vivienda familiar under Ley 258 de 1996 (art. 7). If you are facing enforcement proceedings, establishing which of the two protects the property is a critical step in your defence.

How is the patrimonio de familia inembargable cancelled?

Cancellation is processed by public deed before a notary (Decreto Ley 019 de 2012, art. 84), unless there are beneficiaries who are minors: in that case cancellation falls outside the notarial route and requires court involvement with a curador ad hoc (a guardian appointed for the proceedings), whereas substituting the asset can indeed be processed before a notary with an opinion from the defensor de familia (the State family-welfare officer) — Consejo de Estado, Sala de Consulta y Servicio Civil, Concepto 2151 de 2013. Without that formality the patrimonio de familia survives even if the property changes hands within the same family group. You should take advice before starting any cancellation, so as to avoid unforeseen consequences for your estate.

Are there other legal tools to protect family assets besides the patrimonio inembargable?

Yes. In addition to the patrimonio de familia inembargable of Ley 70 de 1931, there are mechanisms such as capitulaciones matrimoniales, fideicomisos civiles (fiduciary transfers of ownership under Colombian civil law, not common-law trusts), the incorporation of family companies and succession planning by will, all governed by the Colombian Código Civil (arts. 1226 et seq.) and related rules. Choosing the right instrument depends on the structure of the assets, the long-term objectives and the composition of the family group.

Can capitulaciones be made after marrying?

Capitulaciones matrimoniales, as a legal figure, can only be entered into before the marriage. Article 1778 of the Código Civil is explicit: they are irrevocable from the day the marriage is celebrated and cannot be altered afterward, even with the consent of everyone who took part in them. If you are already married and want to change your property regime, the traditional route is dissolution of the sociedad conyugal, although the Corte Suprema (CSJ SC093-2023) has accepted post-nuptial property modifications, a route with its own requirements, procedures and effects.

What if we are already married and want to separate our assets?

If the couple is already married and wants to change their property regime, the route is dissolution of the sociedad conyugal. Article 1820 of the Código Civil provides several grounds, among them the mutual agreement of legally capable spouses, raised to a public deed with an inventory of assets and debts and their liquidation. It is a different process from capitulaciones, with different effects and different implications. It requires legal review of the specific case.

Do capitulaciones affect children's rights?

Article 1773 of the Código Civil provides that capitulaciones cannot operate to the detriment of the rights and obligations the law assigns to each spouse with respect to the descendants they have in common. In other words, the rights of the couple's common children —such as the child support obligation— cannot be removed through capitulaciones. Children from previous relationships are a different matter: capitulaciones may set out rules that protect them or prevent confusion, but they cannot alter rights the law grants them as a matter of mandatory law.

How are capitulaciones matrimoniales formalized in Colombia?

Capitulaciones must be granted by public deed before a notary (article 1772 of the Código Civil). A private document or a verbal agreement is not enough. The deed is granted before the marriage and, once the wedding has taken place, it becomes irrevocably binding. Before going to the notary's office, it is advisable to have legal assistance to check that the content of the document is consistent with each person's actual property situation and that it contains no void clauses or clauses unenforceable against third parties.

Do they also apply to the unión marital de hecho?

The unión marital de hecho and the sociedad patrimonial (the statutory property regime between permanent partners) have their own rules, governed mainly by Ley 54 de 1990. If the couple is not going to marry, there are no capitulaciones matrimoniales properly so called. But agreements about assets can indeed exist, both before and during the union, and they must be reviewed with legal care depending on the case. The unión marital de hecho gives rise to a presumed sociedad patrimonial after two years of cohabitation, and that regime has its own rules for dissolution and liquidation.

Is there a minimum period before the marriage for signing capitulaciones?

The Código Civil does not set an express minimum period between the signing of the capitulaciones and the date of the marriage, but it does require them to predate the wedding. In practice, signing them well in advance has important advantages: it lets both parties review them calmly, it lets the lawyer check consistency with the other property documents, and it avoids last-minute pressure that could compromise the freedom of consent. Capitulaciones signed in haste, under pressure or without full understanding are more vulnerable to later challenges.

What is a family business and why does it need a legal structure of its own?

A family business is one in which a family holds control of the shares or of management and, at the same time, its members take an active part in running the business. Without an adequate legal structure, personal conflicts between relatives spill over into corporate matters and vice versa, jeopardizing the continuity of the company. Family protocols and shareholders' agreements, grounded in the Código Civil and the Código de Comercio (Colombia's Commercial Code), make it possible to separate personal assets from business assets and to set clear governance rules.

What is a family protocol and what does it cover?

The family protocol is an agreement among the members of the business family that sets the rules for relatives joining and leaving the company, corporate governance, the transfer of shares or quotas, and the mechanisms for resolving disputes. Although it is not required by law, its binding force rests on the rules of private law concerning freedom of contract, and its clauses must be harmonized with the corporate bylaws in order to be enforceable. Advice from a specialist lawyer is key for the protocol to be effective and not to conflict with mandatory rules.

How are the shares or quotas of a family business transferred when one of the partners dies?

When a partner dies, their shares or quotas enter the estate and pass to the heirs under the rules of the Colombian Código Civil (arts. 1226 et seq.) or under the provisions of the will, unless the bylaws or the family protocol establish rights of first refusal or restrictions on transfer. The absence of rights of first refusal can result in third parties outside the family entering the company's capital. A lawyer can review the bylaws in force and propose adjustments before the succession event occurs.

Is it advisable to create a family holding company to manage the business's assets?

Creating a family holding company can make succession planning easier, centralize decision-making and separate the risks of each line of business, especially where the family owns several companies or assets of different kinds. Whether it is advisable depends on the structure of the assets, the number of heirs, the tax burden and the long-term objectives. Before setting one up, you should have a specialist legal and financial opinion assessing the costs, the risks and the concrete benefits in your case.

What is the porción conyugal (the surviving spouse's statutory share) and who is entitled to it?

The porción conyugal is the part of the deceased's estate to which the surviving spouse is entitled when they lack what is necessary for their decent subsistence, under articles 1230 et seq. of the Colombian Código Civil. It is calculated on the deceased's assets once the debts have been deducted, and it is added to what the spouse already owns, up to one quarter of the inventoried assets. It must be formally applied for in the succession proceedings.

What are the asignaciones forzosas (the shares the law reserves) in Colombian inheritance?

The asignaciones forzosas are portions of the deceased's estate that the law reserves for certain beneficiaries regardless of what the will provides, and they include the support owed by law, the porción conyugal and the legítimas rigurosas (the strict reserved shares) of descendants and ascendants, under the Colombian Código Civil (arts. 1226 et seq.). The testator cannot reduce or remove these allocations; doing so gives rise to the reform of the will by court judgment. A lawyer can tell you which share corresponds to each heir in your particular case.

Can a will exclude a child from the inheritance?

In Colombia, children are forced heirs entitled to the legítima rigurosa, a portion of the deceased's estate that the testator cannot disregard, unless there is a ground for disinheritance expressly established in the Código Civil. If the will infringes that legítima without a valid ground, the heirs affected can sue for the reform of the will before the court. You should take advice before drafting a will to make sure it is valid and enforceable.

What advantages does a will offer as an estate planning instrument?

A will allows the deceased to determine what happens to the freely disposable portion of their estate, to establish specific legacies, to appoint executors and to set conditions for the administration of the assets, within the limits of the asignaciones forzosas of the Código Civil. Without a will, the assets are distributed according to the statutory order of succession, which may not match the deceased's wishes or the family's real needs. Timely testamentary planning, together with legal advice, reduces disputes and costs in the succession proceedings.

What is the sociedad conyugal and when is it formed?

The sociedad conyugal is the economic regime that arises by operation of law from the mere fact of marriage between Colombians, unless the spouses agreed on separation of property in capitulaciones matrimoniales before celebrating the marriage, under articles 180 et seq. of the Colombian Código Civil. While the regime is in force, assets acquired for valuable consideration enter the community assets and are subject to division when it is dissolved. The assets each spouse owned before the marriage, or those received by inheritance or gift, remain separate property.

What are capitulaciones matrimoniales and what are they for?

Capitulaciones matrimoniales are agreements that prospective spouses enter into before the marriage in order to stipulate the economic regime that will govern their union, such as full separation of property, or to determine what happens to certain assets, under the Colombian Código Civil (arts. 1771 et seq.). They must be granted by public deed and recorded in the civil registry of the marriage in order to be enforceable against third parties. They are especially useful where one or both prospective spouses have assets of their own, pre-existing debts or family businesses they wish to protect.

Is it possible to change the economic regime of the marriage after getting married?

Yes. The spouses can dissolve and liquidate the sociedad conyugal at any time during the marriage by public deed granted before a notary, without the need for a divorce, thereby adopting the separation of property regime for the future, under the Colombian Código Civil. This procedure has significant effects on assets and requires an inventory and liquidation of the existing community assets. You should take legal advice to understand the tax and asset consequences before starting the procedure.

How are one spouse's separate assets protected against the other's debts?

Under the sociedad conyugal regime, each spouse's separate assets do not answer for the other's personal debts, unless they were contributed to the community assets or the creditor proves that the debt benefited the sociedad conyugal, under the Colombian Código Civil. To reinforce that protection, capitulaciones matrimoniales or the early liquidation of the sociedad conyugal are suitable instruments. An analysis of both spouses' asset structure makes it possible to identify the concrete risks and the most effective measures to mitigate them.

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