KINSHIP BY AFFINITY

That the family has changed, compared to its traditional model, is something evident, which does not need more verification than to take a look at our closest circle, where we can see couples united by a non-marital bond, single-parent families, couples without children. and without wanting to have them, families with a homosexual couple, families made up of a couple with whom, in addition to their common children, those who belong to only one of them live together, having had a previous relationship, and in general a casuistry that is very difficult to delimit in a few lines.

All these realities, which deviate from the traditional family model, in recent times, have been recognized in the law, which tries to regulate their effects, sometimes globally and other times partially.

In this entry I want to refer to kinship by affinity, but not in a global way, but rather to some very specific issues, which we will reveal later, since first it is necessary to determine what is meant by kinship by affinity, since there is no legal definition in our legislation.

Kinship is usually defined by affinity as the relationship that links a person to the blood relatives of their spouse or partner ("in-laws").

Article 363 of the Argentine Civil Code deserves to be transcribed for its didactic utility: “The proximity of kinship by affinity is counted by the number of degrees in which each of the spouses was with their relatives by consanguinity. In the straight line, whether descending or ascending, the son-in-law or daughter-in-law is reciprocal with the father-in-law or mother-in-law, in the same degree as the son or daughter, with respect to the father or mother, and so on. In the collateral line, brothers-in-law or sister-in-law among themselves are in the same degree that brothers or sisters are among themselves. If there was a previous marriage, the stepfather or stepmother in relation to the stepfathers or stepmothers [stepson], are reciprocally in the same degree as the father-in-law or mother-in-law in relation to the son-in-law or daughter-in-law”.

Having made this introduction, I want to refer to three very specific questions:

a.- The first of these refers to the faculties of the spouse or cohabiting partner of the parent, with respect to the latter's children. That is, what are the rights and obligations, at least in the family environment, between stepfathers or stepmothers, with stepsons or stepdaughters. Can the stepparents exercise a task of correcting the stepchildren and correlatively the stepchildren have the obligation to obey the stepparents? A partial solution to these problems is provided by article 236-14 of the Civil Code of Catalonia, which allows the stepfather, with respect to stepchildren:

1.- Participate in decision-making on matters related to their daily life, but that in case of disagreement between the parent and their spouse or partner, the parent's criteria prevail.

2. In case of imminent risk to the minor, adopt the necessary measures for the well-being of the child, all of which must be reported without delay to their spouse or cohabitant. This must inform the other parent of this.

b.- The second is the issue of kinship in the field of tax legislation. The concept of kinship by affinity has an influence on corporation tax (related transactions), on wealth tax and especially on inheritance and gift tax. In Catalonia, the General Directorate of Taxes of the Generalitat, before consulting the tax treatment that donation or legacy operations granted by the father-in-law in favor of the son-in-law could have, and vice versa; donation or bequest made in favor of the stepson; and the donation or legacy granted by the stepson in favor of the stepfather, with reference to Law 19/2010, of June 7, regulating inheritance and donation tax has indicated:

The general rule is that ascendants and descendants by affinity are equated to second and third degree collaterals (group III), thus having the right to a tax credit of 8,000 euros, in the case of successions and lacking the right to reduced rates in the case of donations.

But, as a special rule within kinship by affinity, limited to operations between stepparents and stepchildren, Article 60 Law 19/2010, of June 7, states that relations between a spouse or a cohabitant in a stable relationship and the children of their spouse or the other member of the couple are assimilated, for the purposes of inheritance and gift tax, to the relationship between ascendants and children. For this reason, in the case of inheritances or legacies between stepparents and stepchildren, we are within the scope of the bonus of 100,000 euros, regardless of whether others may be applicable, if the requirements for it are met, and in the case of donations there is right to the reduced rate of 5%, 7% or 9%.

On the other hand, two recent judgments (TSJM DE LAS ISLAS CANARIAS 442/2014 and STSJ DE MADRID 1693/2014) have indicated that the inheritance tax law, by not differentiating between kinship by affinity and by consanguinity in the case of collaterals, has as Consequently, the equalization of the two types, so that in the case of collaterals by affinity of the 2nd or 3rd degree, they are entitled to the same reduction as collaterals by consanguinity of the 2nd or 3rd degree, that is, 8,000 euros currently in Catalonia and a multiplier coefficient of 1.5882.

c) And finally we have to point out the controversial issue regarding the extinction of kinship by affinity. The thesis of the Tax Administration was embodied in the Consultation of the Directorate General of Taxes of October 25, 2007, which has been assumed by the autonomous Administrations, in the sense that kinship by affinity is linked to marriage, therefore that when it is extinguished, the relationship by affinity is extinguished. The courts of the contentious-administrative jurisdiction, when faced with this question, do not endorse this thesis and have concluded that there is no legal cause by virtue of which the relationship by affinity is extinguished by the death of a person, which causes the loss of the relationship with the rest of the family group.

The most balanced solution to this matter, perhaps, is the one provided by the Community of Aragon, which in article 133-4.2 of the Consolidated Text of the provisions issued by the Autonomous Community of Aragon regarding ceded taxes, states: "To the For the purposes of applying the tax benefits in the Inheritance and Gift Tax, it will be understood that the relationship by affinity is not lost due to the death of the spouse who serves as a link, unless there is a second marriage“.

Corrected version as of June 17, 2014.

2 thoughts on “EL PARENTESO POR AFINIDAD”

  1. Thank you very much for clarifying that the degree of kinship by affinity and by consanguinity is the same... that is, between stepfather and stepdaughter first degree, since in the notary's office of Aguilar de Campoo, apart from the notary did not know of the existence of the relationship By affinity in a consultation carried out this Friday, April 28, 2017, once he verified that this relationship between stepfather and stepdaughters was contemplated, he told us that the inheritance tax bonus was almost 9,000 euros, as if we were nieces.

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