If you are getting married or living together and own a business, what you agree beforehand decides what enters the marital partnership and what stays your separate property. Once the marriage is celebrated, capitulaciones can no longer be altered. Ligal guides you with a legal and tax perspective.
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The capitulaciones matrimoniales, under Article 1771 of the Civil Code, are the agreements that spouses enter into before marriage about the assets they bring and the gifts and concessions they wish to make. They are executed by public deed (Art. 1772), list the assets brought with their value and a statement of each spouse's debts (Art. 1780), and may not go against good morals or the law, nor harm the rights of spouses or descendants (Art. 1773). If nothing is agreed, the sociedad conyugal arises by the mere fact of marriage (Art. 1774). And one rule weighs heavily on planning: capitulaciones are irrevocable from the celebration of the marriage and, once it is celebrated, they cannot be altered (Art. 1778); changes are only possible before the marriage and with the same formalities, and against third parties they require a marginal note (Art. 1779). That is why the decision is made before getting married, not after.
Within the sociedad conyugal, the social estate includes salaries, the fruits and profits of social assets and also of separate assets accrued during the marriage, and assets acquired for value during it (Art. 1781, items 2 and 5). By contrast, inheritances, legacies and gifts belong to the spouse who receives them (Arts. 1782 and 1788); subrogated real estate and items bought with separate funds designated in capitulaciones do not enter (Art. 1783); nor does anything acquired during the partnership when the cause or title preceded it (Art. 1792). Mind the presumption in Article 1795: money, credits, rights and shares in a spouse's hands when the partnership is dissolved are presumed to belong to it, unless proven otherwise; a business owner needs to be able to show which holdings were theirs before the marriage, and to analyze case by case how profits distributed by the company during the partnership are treated. For unions without marriage, Law 54 of 1990 (Art. 2, as amended by Law 979 of 2005) presumes a patrimonial partnership between permanent partners when the unión marital de hecho lasts at least two years and allows it to be declared by public deed before a notary or by conciliation record; the law does not expressly regulate "capitulaciones" for the unión marital. On tax, Article 47 of the Tax Statute provides that what is received as gananciales is not occasional gain, whereas what is received as conjugal portion is. And these tools do not work to put out of DIAN's reach what is already owed to it: on that risk see /insolvencia-fraudulenta-dian; for the full picture, /planeacion-patrimonial.
Key points on capitulaciones and sociedad conyugal
Ligal reviews your situation before anything is signed: which assets and holdings you have, what it makes sense to agree, how your business is affected and what tax effects each decision would have, without promising results.
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We organize what you bring: real estate, company holdings, accounts and obligations, with their value. That inventory is the basis of the statement of assets and debts required by Article 1780 and of future proof against the presumption of Article 1795.
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We assess whether capitulaciones make sense, what to include and how they fit with other planning tools, such as a holding structure or the family estate, without breaching the limits of Article 1773.
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LIGAL Auditores and Jeysson Pulido quantify and document the accounting and tax impact: how assets are recorded, what happens with gananciales (Art. 47 Tax Statute) and which DIAN positions should be kept in mind.
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We support the preparation of the public deed of capitulaciones and, where relevant, the liquidation of the sociedad conyugal by mutual agreement before a notary, making sure the estate and your standing before DIAN are in order.
A family estate decision is made well when legal judgment and the accounting of the assets are reviewed together from the start.
Director · Tax lawyer, ex-DIAN
Leads legal strategy: analyzes what makes sense to agree, how it relates to the business and to the estate's standing before DIAN, and the tax effects of the decision.
Accountant · Valuation and traceability
Reconstructs the value of assets, holdings and debts of each party and leaves the traceability that supports what was separate property before the marriage.
Certified public accountants · Law 43 of 1990
Prepare the accounting support for the estate and the business, useful for the inventory of the agreement, the income tax return and a possible liquidation.
Capitulaciones are irrevocable from the marriage and cannot be altered once it is celebrated (Art. 1778 Civil Code). If the moment has passed, we study other planning alternatives, without forcing what the law does not allow.
Capitulaciones or liquidations made to defeat an existing collection are a risk, not a solution. If there are debts, the debt is analyzed first; see /insolvencia-fraudulenta-dian.
Law 54 of 1990 regulates the patrimonial partnership between permanent partners, but it does not expressly regulate capitulaciones for the unión marital. We explain clearly which options do exist in each case.
When a person with a business and assets is getting married, lives in a unión libre or must liquidate a sociedad conyugal, Ligal reviews the estate, proposes the agreement or structure that fits best and measures its tax effect. Juan Santiago Rodríguez Prieto, tax lawyer and former DIAN official, leads the strategy together with accountant Jeysson Pulido and LIGAL Auditores (certified public accountants, Law 43 of 1990). If there are also debts or risks before DIAN, the firm handles the defense end to end, criminal and administrative, with the same team. The firm works on real cases of audits, coercive collection and tax litigation: in a verified Google review, client Julian Rodriguez shares that, thanks to representation before DIAN, "we achieved the closure of a tax lawsuit pending against my company".
Please note: no result is guaranteed; each case depends on the facts, the dates and the documents available. This page is informational and does not replace an individual analysis of your situation.
Director
Juan Santiago Rodríguez Prieto
Tax lawyer · Ex-DIAN
We assess your assets, your business and where you stand (before marriage, in a unión libre or in liquidation) within 48 business hours. Use the form or open Diagnosis.
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TodayWe review the list of assets and debts, the certificates of company holdings and, if they exist, prior deeds or agreements.
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48 business hWe assess what would enter the sociedad conyugal or patrimonial partnership, what makes sense to agree and what tax effects each alternative would have.
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ImmediateWe define the recommended agreement or structure and the route for the public deed or the liquidation by mutual agreement before a notary.
Frequently asked questions
Under Article 1771 of the Civil Code, they are the agreements that spouses enter into before marriage about the assets they bring and the gifts and concessions they wish to make. They are executed by public deed (Art. 1772), list the assets brought with their value and a statement of each spouse's debts (Art. 1780), and may not go against good morals or the law, nor harm the rights of spouses or descendants (Art. 1773).
No. Capitulaciones are irrevocable from the celebration of the marriage and, once it is celebrated, they cannot be altered (Art. 1778 of the Civil Code). Changes are only possible before the marriage, with the same formalities, and against third parties they require a marginal note (Art. 1779). That is why it pays to decide and review the agreement well ahead of the ceremony.
Without an agreement, the sociedad conyugal arises by the mere fact of marriage (Art. 1774). The social estate includes salaries, the fruits and profits of social assets and of separate assets accrued during the marriage, and assets acquired for value during it (Art. 1781). By contrast, inheritances, legacies and gifts belong to the spouse who receives them (Arts. 1782 and 1788), and what is acquired during the partnership does not belong to it if the cause or title preceded it (Art. 1792).
It depends on the case and on the evidence. Article 1781 includes in the social estate the fruits of separate assets accrued during the marriage, so profits distributed by the company while the partnership lasts must be analyzed carefully. In addition, Article 1795 presumes that money, credits, rights and shares in a spouse's hands when the partnership is dissolved belong to it, unless proven otherwise. That is why it pays to document in advance which holdings were separate and, if desired, to regulate it in capitulaciones.
Law 54 of 1990 (Art. 2, as amended by Art. 1 of Law 979 of 2005) presumes a patrimonial partnership between permanent partners when the unión marital de hecho lasts at least two years; it can be declared by public deed before a notary or by conciliation record. It is dissolved by public deed, conciliation record, judgment or death (Art. 5). The law does not expressly regulate "capitulaciones" for the unión marital, so planning is analyzed case by case.
It can be liquidated by mutual agreement before a notary, through the corresponding notarial procedure. The inventory of assets and debts, their valuation and the accounting support weigh the most, and it pays to review the tax effects of the allocation beforehand.
Article 47 of the Tax Statute provides that what is received as gananciales is not occasional gain, but what is received as conjugal portion is. The Consejo de Estado (case 22570 of 2017) has understood that gananciales allocated are reflected as income that is neither taxable income nor occasional gain. DIAN, in Oficio 250-006184 of 2019, treated the waiver of gananciales as a gratuitous act generating occasional gain for the beneficiary; it is a disputed position to keep in mind when planning.
They are not a tool for that. Disposing of assets to defeat an existing collection is a criminal and civil risk analyzed separately; the page /insolvencia-fraudulenta-dian explains it. Legitimate estate planning is done beforehand and transparently, and if there are already debts the priority is to deal with the debt itself. For an overview of seizures see /blindaje-patrimonial-embargos-dian.
Ligal is the reference tax law firm in Colombia and reviews the estate with lawyers and accountants in one team. Under the direction of Juan Santiago Rodríguez Prieto, tax lawyer and former DIAN official, together with Jeysson Pulido, accountant, and LIGAL Auditores (certified public accountants, Law 43 of 1990), we prepare the inventory, measure the tax effect and, if there are debts or risks before DIAN, handle the defense end to end. Our work is backed by 5.0 / 5 on Google with 36 reviews: https://share.google/VVzMvULrOj8Mj52Au. The firm works on real cases of audits, coercive collection and tax litigation: in a verified Google review, client Julian Rodriguez shares that, thanks to representation before DIAN, "we achieved the closure of a tax lawsuit pending against my company".
Free. Attach the list of your assets and debts, the certificates of your company holdings and any prior agreement or deed. We assess what makes sense to agree and what tax effects it would have.