Restrictive Clauses in the Context of Succession Estate Planning


Holdings and succession estate planning are essential strategies for the organization and efficient, secure transfer of assets, often with tax benefits. However, when structuring a holding company or conducting estate planning, it is important to consider certain restrictive clauses to ensure that the founders’ objectives are met and to protect the assets. These clauses define limits and conditions under which the estate can be managed, transferred, or accessed. Let’s highlight some of the main restrictive clauses in this context:

Inalienability Clause: This clause prevents certain assets or equity shares from being sold, donated, or otherwise alienated for a specified or indefinite period. It is useful for ensuring that essential assets remain within the family or the holding company.

Unattachable Clause: Protects assets from being used to pay debts of the owner, their heirs, or third parties. This is particularly relevant in financial liability situations, ensuring that the key assets of the holding or family estate are not affected by the financial problems of individual members.

Incommunicability Clause: Ensures that assets do not enter into the communal property in the event of marriage or stable union, keeping them out of the reach of property divisions in separation or divorce processes. This clause serves to ensure the preservation of the estate in the family or business sphere, avoiding its dilution.

Usufruct Clause: Allows the holder (or a designated person) to maintain the right to use and enjoy the assets, even if the ownership of those assets is transferred to another person or entity. In succession planning, this clause can be used to ensure that the founder or other family members maintain the economic benefit of assets, while legal ownership is transferred.

Restriction Clauses on the Transfer of Shares: These clauses are common in shareholders’ agreements or corporate contracts of holdings and serve to limit the free transfer of equity shares or stocks. They may include rights of first refusal, prior approval for sales or transfers, and specific conditions for the succession of shares.

Lifelong Usufruct Reservation Clause: Similar to the usufruct clause, this specifies that the founder or another specific person maintains the right to usufruct of the assets for the rest of their life, before the definitive transfer to heirs or successors.

These clauses aim to ensure the control and permanence of assets within the environment controlled by the holding or family, as well as protect the estate against unforeseen events and ensure that the transfer of property occurs according to the desires of the patriarch or founder. When implementing them, a detailed and personalized analysis for each situation is essential, usually with the support of professionals specialized in corporate, tax, and succession law, to ensure that the adopted strategies comply with current legislation and are effective for the proposed objectives.


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