How digital currencies are divided in case of divorce or succession: treatment and legal regulation

Digital currencies or cryptocurrencies are a new category of assets in digital format, which are activated by means of an encryption
cryptographic, this being the one that guarantees ownership and ensures the integrity of transactions, preventing the same digital asset from being transferred twice or being falsified.

They are called “digital”, because they do not exist physically, and there are several types (among the best known bitcoin,
ethereum), and are stored digitally on an exchange or in virtual wallets where the holder has control of their funds.

Cryptocurrencies work through a shared ledger or blockchain, where gigantic amounts of information can be recorded and stored.

Given the accelerated growth of this type of novel investments, in many countries a regulatory framework is beginning to be given to cryptocurrencies.

In Argentina and in order to provide equal tax treatment, the government decided to include cryptocurrency operations among those that are included in the tax on credits and debits in bank accounts, commonly called a check tax.

It did so through decree 796/2021, which introduced changes to the Competitiveness Law, and which at the time created the check tax to
beginning of 2001, stating the same “” The exemptions provided for in this decree and in other regulations of a similar nature will not be applicable in those cases in which the movements of funds are linked to the purchase, sale, exchange, intermediation or any other operation on crypto assets, cryptocurrencies, digital currencies, or similar instruments ”, thus marking the inclusion of digital currencies in taxation to the treasury.

From a macro-legal point of view, digital currencies are not yet regulated in our country, there are currently three bills, although only one of them was presented in congress.

The projects aim at consumer protection, prevention of fraud and other crimes, the promotion of private competition based on clear regulation, and technological innovation. According to the parliamentary initiative, the enforcement authority would be the National Commission of
Values ​​(CNV).

Cryptocurrencies are increasingly becoming a factor to consider in estate agreements in divorces and successions, as bitcoin and other types of digital currencies have gained widespread acceptance and increased in value.

One of the first problems that arise in relation to this class of assets lies in “finding the cryptocurrencies”, since if the person does not have them in a recognized exchange, they are under condition of anonymity.

Cryptocurrencies traded on an online exchange or purchased with funds from a bank account may be easier to track and
quote.

But if they are removed from the internet, for example, if someone transfers their digital wallet to a pen drive, this becomes more difficult. In that case,
can bring a digital forensic expert to the judicial process to review the e-mail of the spouse, or the deceased, and in this way determine what
transactions were made.

Cryptocurrencies also pose the problem of valuation, since it is a very volatile currency in terms of its value, and that volatility makes it difficult to determine its value easily, as the price can fluctuate a lot in the course of a divorce. Traditional court methods of obtaining information on existing assets, such as the issuance of judicial notices (requests for reports from entities), can be difficult to apply to cryptocurrencies, since it will have no grip without a centralized authority to apply it and enforce the court order or request information. Therefore it is more convenient and at the same time great
It is important to offer the expert evidence of a computer expert in the judicial process in question.

For the purposes of division either between spouses or heirs, cryptocurrencies are considered as any other good, and therefore
They are subject to succession by the owner’s heirs, division of community property, liens of all kinds. As they are also
liable to be transferred while alive through a will, where the access credentials are recorded.

In the event of the death of a holder of cryptocurrencies, if they had them in an exchange, the heirs can manage or dispose of the
funds proving the death and said character, by means of a declaration of declaration of heirs in which administrator of the inheritance is appointed.

There is no doubt that this class of assets and investments have come to stay in a globalized economy, representing a challenge for
States due to the need for proper regulation, as well as representing a greater diversification of investments that were known, and that just a decade ago were unimaginable or very remote.

Collaboration: Vanesa Débora Mestre / Lawyer (Registration San Juan 3278-
Registration Mendoza 6118 – Federal T. 78- F. 316) l / Tel. 2644189975 /

E-mail:[email protected]

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