Consequences of the Declaration of Unconstitutionality of the Regulation of Stable Couples in Catalonia

Last September 2023, the 17th Section of the Provincial Court of Barcelona raised a question of unconstitutionality before the Constitutional Court regarding the current Catalan Law on Stable Couples, which has been in force for more than 25 years. The issue is based on the criteria with which the Constitutional Court resolved in Judgment 93/2013, of April 23, on the Foral Law 6/2000, of July 3, for the legal equality of stable couples in Navarra, which was almost emptied of content by deeming many provisions unconstitutional for violating Article 10.1 of the Spanish Constitution (hereinafter, "CE"), representing an infringement on the right to the free development of personality, and due to Navarra's lack of competence to regulate the matter, as it is an exclusive competence of the State according to Article 149.1.8º CE.

The resolution of this issue will have effects both in the civil and tax fields:

From a civil point of view, it is worth noting that in Catalonia, the Fourth Book of the Catalan Civil Code (hereinafter, "CCCat"), equates the surviving spouse with the surviving partner in inheritance law, which was the context within which the question of unconstitutionality was raised. This equating means that in intestate succession, the spouse or partner is called to inherit in preference to the parents, and therefore, when there are descendants, the partners will have the right to the universal usufruct of the descendants' inheritance and, in the absence of them, the partner will be the direct heir of the deceased, in preference to the parents of the deceased. The nullity of the current regulation would mean that, without recognizing the inheritance rights of partners who have not formalized their situation before a notary or in the register of stable couples, they would lose all the inheritance rights that they have been recognized so far.

From a tax point of view, one of the main taxes that would be affected by the possible nullity of the legal figure of de facto partnership is, undoubtedly, the Inheritance Tax.

Although it is a tax ceded to the autonomous communities, it is pertinent to analyze the state regulation, which would serve as a starting point in a scenario where the figure of de facto partnership is declared unconstitutional. The state regulation, contained in Law 29/1987, has been modified numerous times and does not contemplate the figure of de facto partnerships. In this regulation, the spouse is classified in the second group, while the de facto partner is not mentioned, being classified, therefore, in group IV, along with collateral relatives of the fourth degree, more distant degrees, and strangers. This classification implies that, for inheritance and donation purposes, de facto partners bear a considerably higher tax burden compared to spouses, as they do not benefit from reductions or allowances and are subject to a higher multiplicative coefficient.

In contrast, the Catalan regulation, specifically Article 59 of Law 19/2010, of June 7, on the regulation of the Inheritance and Donations Tax, establishes that "Members of stable couples are assimilated to spouses for the purposes of the inheritance and donations tax." Although the creation of the register of de facto couples has allowed for significantly delimiting and controlling the use of this legal figure, there still exists a considerable number of couples who meet the years of cohabitation requirement but are not registered.

The Catalan regulation, by assimilating registered de facto couples with spouses, allows that, in Catalonia, surviving members of such duly accredited and registered couples are considered spouses for tax purposes. This assimilation grants them access to tax benefits, notably the 99% reduction in the tax quota.

Moreover, de facto couples duly registered in the register will be entitled, just like spouses, to the widow's pension and the widow's fourth, rights that, although they do not have a direct tax impact on the surviving member, can have substantial repercussions on the lifestyle of surviving partners.

On the other hand, the possible nullity of de facto partnerships would also affect the Urban Land Value Increase Tax, as currently, several municipalities provide a significant allowance for cases where, due to death, the transmission of the habitual residence of the couple or marriage takes place between members of the marriage or the de facto partnership.

In conclusion, the possible nullity of the legal figure of de facto partnerships would significantly impact the recognition of inheritance rights in the civil field, while in the tax field, it would especially affect the Inheritance Tax. The existence of registers of de facto couples helps control and legitimize this legal figure, although there are still challenges to include all unregistered couples. Therefore, the declaration or not of the constitutionality of de facto partnerships keeps not only jurists and professionals but also all people under the umbrella of this legal figure in suspense, with particular attention to the ex tunc or ex nunc effects of the possible nullity, not forgetting that, in the precedent of the Navarra community, the Constitutional Court opted for a declaration with pro futuro effects, that is, only concerning new cases or administrative procedures and judicial processes where there has not yet been a final resolution, respecting the principle of legal certainty.