Is it possible to make a civil trust conditional upon the death of the settlor?

According to the Supreme Court of Justice:

“[…] it lacks legal reality as a trust, due to the absence of one of the specific essential elements required for its constitution, since the restitution was not made subject to a condition, but rather to a term, notwithstanding the fact that Article 794 of the Civil Code defines fiduciary ownership as that which «is subject to the encumbrance of passing to another person upon the occurrence of a condition”, and Article 801 ibid. provides that “provisions subject to a date which do not amount to a condition, according to the rules set forth in Title of Testamentary Assignments, Chapter 3, do not constitute a trust». 

In accordance with those provisions, […] Article 1139 establishes: […]

The day is certain and determined if it must necessarily arrive and it is known when, such as a given day of a given month and year, or so many days, months, or years after the date of the will or the death of the testator. It is certain but indeterminate if it must necessarily arrive, but it is not known when, such as the day of a person’s death. (…).

Within that statutory and jurisprudential framework, it is clear that the death of a person constitutes a term, as it is an event that is known to necessarily occur, although it is unknown when, that is, the exact day is not known, which, despite being indeterminate, will certainly occur”.

Can the death of the settlor become a legal condition?

According to the Supreme Court of Justice, a valid condition for purposes of properly constituting a trust may be structured based on the death of a person, “provided that some element of uncertainty is added to its occurrence, such as if, in the case at hand—where the decision referred only to the death of the settlor—it had been stipulated that for purposes of restitution, that is, for the beneficiaries to begin to enjoy full ownership of the property, it shall be an indispensable condition that the death of the settlor occur within two years following the constitution of the trust”.

How can death be validly structured as a condition?

According to Decision SC2119 of 2025, for the death of the settlor to constitute a valid suspensive condition rather than an extinctive term, it is imperative to add an element of uncertainty to the event of death. A mere reference to death is insufficient; it must be made contingent upon an indeterminate circumstance (Article 1139 of the Civil Code).

Legal Effects of the Decision

The principal effect of this decision is that numerous civil trusts structured under the “condition” of the death of the settlor may be deemed nonexistent or null when subjected to review or challenge before the civil courts.

In light of the risk of dispute arising from this precedent, we recommend conducting a review of existing fiduciary structures. It is essential to verify that the contractual framework complies with the new judicial standard, in order to safeguard the assets intended to be protected through this mechanism and to ensure that the estate planning strategy remains valid and enforceable against third parties.