An Estate Planner’s Guide to “Cultural Property” Rights

From the 1980s forward, patrimony laws have impacted major museum institutions around the globe. As source countries filed lawsuits against the cultural agents of former colonial empires, requesting return of antiquities and other cultural property, the response to due diligence by those foreign jurisdictions continues to be uneven. Conflicts over the rightful ownership of cultural property can also affect estate planning and probate proceedings. Beneficiary cultural institutions responsible for the accession, preservation, and management of those rare cultural objects can also decide to deaccession those gifted assets after the death of an estate holder, further complicating a matter.


Legal Definition of “Cultural Property”

Cultural property is distinct from personal or other forms of property within federal law. The United States recognizes the cultural property of sovereign tribal or foreign nations based on legal claims of territory, identity, or moral right. Rights to the ownership of registered cultural assets is considered a “superior claim” within international law; and supersedes “good faith” monetary transactions by collectors or museums.

Cultural property management stands as the single most cited reason for withholding of artefacts and other patrimony by foreign institutions. In the United States, jurisdiction of origin determines rights to accession and asset management by institutions, and ownership by collectors, and estate planning and transfer.


Patrimony, Rights, Restrictions

Restrictions apply to the transportation of cultural property across borders. International treaties protect cultural property from future circulation or trade. 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, 1995 define international cultural property rights laws in 127 nations signatory to the conventions. The UNESCO Act of 1970 was integrated within U.S. federal law in the Convention on Cultural Property Implementation Act of 1983 (“CIPA”); also referred to as Public Law 97-446 (19 USC 2601 et seq).


Cultural Property and Estate Planning

National interpretation of international law within national domestic law generally reflects a country’s historical relationship with the cultural property at issue within a claim. The most cited reason for the withholding of patrimony by another nation, asset management is also the basis for similar property claim by an estate or trust. An estate planner assisting a client who owns cultural property determined to be of a protected class of patrimony, must have knowledge of the specific laws of the country origin, to properly address issues of patrimony and property transfer in correspondence with U.S. laws.


Consult a Licensed Estate Planner

Family heirloom or stolen cultural property of another nation or group? The appropriation of antiquities during a hike on tribal reservation land, or while on vacation abroad, can lead to estate planning headaches later without the assistance of an experienced estate law attorney. Consult with an attorney at law experienced in estate planning about the proper formation of an estate or trust for transfer or cultural property assets.


New York Estate Law Firm

Ettinger Law Firm is a licensed New York attorney practice specializing in estate planning and probate litigation. Contact Ettinger Law Firm to schedule a consultation about an estate or trust law related matter.     

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