The Estate Planner’s Guide to “Cultural Property” Assets

Since the 1980s, the enactment of national patrimony laws implicating major museum institutions, has sought revised definition of the rules of cultural property ownership. The record of lawsuit filed by the countries from where works of patrimony was originally sourced, is extensive. Not surprisingly, one only must review the history of cultural agents sent on expedition by former colonial empires, to understand the vast extent of the request for return of antiquities and other cultural property around the globe. Notwithstanding international rule reform in this area of law, due diligence by those foreign jurisdictions continues to be uneven. Planned giving specialists can gain important insights about the legal and tax effects of cultural property asset transfers for nonprofit charitable giving plans.

“Cultural Property” in Law

The definition of cultural property is distinct from personal or other forms of property assets included within an estate. U.S. federal law recognizes the cultural patrimony of sovereign tribal or foreign nations. This is interpreted based on legal claims of territory, identity, or moral right to work. Origin is considered a “superior claim” within international law; thus superseding “good faith” paid transactions of collectors or museums. More generally, the rights of ownership for registered tangible assets, affords the owner to assert claims on those cultural assets. Issues of cultural property management stand as the primary rationale for withholding rare artefacts and patrimony by foreign institutions.

Rights and Restrictions

The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export or Transfer of Ownership of Cultural Property 1970, and UNIDROIT Convention of 1995, provide rule definition for international cultural property rights laws in 127 signatory nations of the conventions. The UNESCO Act of 1970 integrated within U.S. federal law in the Convention on Cultural Property Implementation Act of 1983 (“CIPA”); is referenced as Public Law 97-446 (19 USC 2601 et seq). Restrictions apply to the cross-border transportation of cultural property assets. The international treaties protect recognized national patrimony from future circulation or trade without the consent of the nation where the cultural property was originally sourced.

Estate Planning for Cultural Assets

The interpretation and integration of international laws by individual national laws, arguably reflects a country’s historical relationship with the cultural property or patrimony at issue within a claim. The most cited reason for the withholding of patrimony by another nation, is institutional asset management. Similarly, asset management is the defense commonly used by a trust subject to a lawsuit by a foreign claimant. An estate planner assisting a client with the formation of a trust for inclusion of cultural property, should determine if those assets are a protected class of cultural patrimony to avoid future legal complications. The specific laws applying to patrimony in the country of origin, to properly address issues of cultural property transfer in correspondence with U.S. laws.

Avoid Patrimony Disputes

Concerned a family heirloom or stolen cultural property of another nation or tribe? Has the discovery of antiquities during a hike, or while on vacation abroad led to estate headaches later as result of museum or gallery donation? Cultural patrimony lawsuits brought against beneficiary institutions responsible for the accession, preservation, and management of rare cultural objects are increasingly common. Institutions are obliged to deaccession those gifted assets after the death of an estate holder, potentially implicating an estate or trust. Indeed, conflicts over the rightful ownership of cultural property can impact estate planning upfront, or later during probate proceedings. In some circumstances, it is because cultural property is involved. Avoid patrimony disputes by soliciting the advise of an estate attorney or planning specialist experienced in cultural property administration.

The enactment of U.S. Public Law 97-446 established federal rules correspondent to international U.N. legislation for cultural property estates and the settling of patrimony lawsuits.

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