Marriage

Raul Berges: Married wife inherits by separation of property

The main confusion noticed on this regard is lack of data of sharecropping and succession establishments. The legislator of the Civil Code of 2002 supposed to raised outline the excellence between the aforementioned phrases. However, what we see in actuality is a delusion that haunts society normally.

This is as a result of many laymen of the legislation consider that when a wedding is ruled by customary separation of property, the partner is not going to be entitled to any half of the property left by the wife. whose. And such an announcement is totally mistaken, since on this case the surviving partner is an inheritor (has the appropriate to inherit) however not a co-sharer (has no proper to share).

Let’s clarify it. From a technical level of view, sharecropping falls beneath household legislation whereas inheritance falls beneath succession legislation. Additionally, spouses can’t, as per present guidelines, be heirs and co-sharers on the identical time in respect of the identical property. According to the adopted property system, the surviving partner can be a co-sharer or inheritor, neither of which pertains to a particular property.

The sensible professor Flavio Tartus created a desk [1] To facilitate understanding of the topic. Let’s see.

Regimes the place spouses or companions inherit in competitors

Regimes the place spouses or companions don’t inherit in contest

  • Partial neighborhood property regime (when the deceased leaves private property)
  • Final Participation Scheme in Search
  • Total separation of typical/useful resource regimes
  • Partial neighborhood property regime (when the decedent leaves solely neighborhood property, with no private property)
  • System of public neighborhood of property
  • Legal or obligatory separation of property regimes

In this sense, it’s important to focus on the choices of the Superior Court of Justice (STJ) in EREsp 1,472,945/RJ and REsp 1,382,170/SP, which adopted a place to the impact that Article 1,829, I of CC02, is a public coverage rule, and the need of the events Cannot be eliminated by.

Thus, for the reason that legislation didn’t present for customary separation of property as an exception succesful of stopping competitors, i.e., the surviving partner’s proper to inherit, the events had no alternative however to marry beneath this regime. in order that the opposite essentially inherits it.

In different phrases, from the second an individual chooses to marry beneath the standard separation of property regime, they routinely — and essentially — inherit their partner once they die.

The misunderstanding that has developed among the many basic public stems exactly from the distinction between what occurs to property when a married couple separates and when one of them dies beneath the normal separation of property regime. This is as a result of, upon dissolution of the conjugal partnership, neither social gathering has rights over the property of the opposite, for the reason that property are private, i.e. they aren’t communicated.

In abstract, the present Civil Code permits married individuals beneath the customary separation of property regime to decide on the preparations that can govern their property within the occasion of separation, but it surely doesn’t permit these identical individuals to outline the course of all their property. their loss of life , as your surviving partner legally imposes, can be your mandatory inheritor.

At this level, it’s fascinating to gather a quote from the profitable vote in REsp 1.382.170/SP, in verbs:

“It is the legislator who determines the order of hereditary occupation. He can create a system for separation in life totally different from separation by loss of life. And he did. He established a system for the division of items by trigger of loss of life and one other system. Divorce ends in separation in life. For. The legislator has distinguished. So, the interpretation right here is systematic, sure, however throughout the respective techniques. I can’t take one precept from right here and one other precept from there, make a special one and make a special customary in that code. Highlight that, If the legislation makes any reservation as to the appropriate of inheritance as a result of the matrimonial regime is common or partial union or within the case of obligatory separation, when the chosen regime is a non-compulsory separation of property, it doesn’t make any provision, in order that, on this case, the spouses married beneath such a regime juz, in addition to partial Under communication the place there is no such thing as a frequent property, that’s exactly what the legislation sought to guard, since, in idea, he’s with out property, with out assist, since , in keeping with the previous rule, other than disinheritance (as a result of presence of descendants) there would nonetheless be no property to be divided’.”

The doctrine follows the identical orientation, as seen from the studying of assertion 270 of the CJF, ipsis litteris:

“Article 1,829, merchandise I, solely ensures the surviving partner the appropriate to compete with the descendants of the writer of the inheritance when married beneath the customary separation of property regime or, if married beneath the regime of partial neighborhood or final participation within the property, private property owned by the deceased, wherein case the competitors is The type is restricted to wealth, and the frequent wealth (meação) have to be divided completely among the many descendants.”

With a purely instructional perform, let’s analyze the desk beneath, which seeks to assist perceive the theme.

Conventional separation of property regimes on termination of conjugal partnership (divorce/separation/separation of everlasting union)

Conventional separation of property regimes within the occasion of the loss of life of one of the spouses

Family rights

Law of Inheritance

Parties have opted for a regime the place property will not be communicated.

The alternative for this regime is efficient solely in life, by authorized imposition which can’t be eliminated by the events.

Each partner shall have their non-public individuals, one shall don’t have any proper over the opposite.

The surviving partner should inherit.

There is not any solution to examine this matter with out mentioning the gaping authorized error within the textual content of article 1829, I, of the CC02. The aforementioned provision refers to article 1,640 of the identical diploma, however, the truth is, it ought to seek advice from article 1,641, which supplies for the obligatory segregation of property.

This mistake opened a loophole prior to now for an in depth authorized dialogue that debated whether or not the legislature made an exception to take away the surviving partner from contestation solely within the case of obligatory separation of property (Article 1641) or within the case of adoption as nicely. Conventional separation system of merchandise.

At current, the prevailing place is that the aforesaid provision accommodates an error which have to be rectified by the legislature, since its intention was to exclude the surviving partner from the situation of inheritor in a conjugal society ruled by the authorized separation of property, sustaining, thus, as the required inheritor by the customary separation of property. Regulated matrimonial society is the surviving partner.


reference
Brazil. Justice. Available at: www.planalto.gov.br/ccivil_03/leis/2002/ L10406.htm. Date accessed: 8 August. 2022

______ Superior Justice Tribunal. EREsp 1,472,945/RJ. Correspondent: Antonio Carlos Ferreira. Available at: https://processo.stj.jus.br/processo/revista/doc/mediado/?componente=ATC&sequencial=49440956&num_registro=201303350033&knowledge=20150629&tipo=5&Forma. Date accessed: 8 August. 2022

______ Superior Justice Tribunal. RESP 1,382,170/SP. Reporter: João Otávio de Noronha. Available: https://processo.stj.jus.br/processo/pesquisa/ ?tipoPesquisa=tipoPesquisaNumeroRegistro&termo=201301311977&totalRegistrosPorPagina=40&aplicacao=processos.ea. Date accessed: 8 August. 2022

Tartus. Flavio. Civil Law Manual: single quantity. eighth Edition. Rio de Janeiro: Forensic; São Paulo, Methods, 2018, p. 1692-1714.

Raul Berges is a lawyer within the discipline of enterprise legislation, property safety specialist, founding companion of Raul Berges Advogados, Brazilian Institute of Business Law (IBRADAMP) and member of the Bankruptcy Law Commission of the OAB-RS, subsection Hamburg of Novo.

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