The Civil Code is under reform. And a proposal, if approved, should change the way property succession is carried out in Brazil. It foresees that spouses will lose their status as necessary heirs.
The text that updates the Civil Code is broad and was created by a team of experts from the Judiciary, based on contributions from society.
The result of the work became a preliminary draft sent to the Senate. Rodrigo Pacheco (PSD), president of the Senate, promised to move forward with the text of the jurists into a bill, which will discuss the new configuration of the Civil Code in Congress.
Known as the “Constitution of the Common Citizen”, the Civil Code establishes rules for Brazilians from the moment they are conceived (i.e., before birth) until after death. It contains, for example, rules related to marriage, activities in society, such as the regulation of companies and contracts, and succession and inheritance processes.
Necessary heirs: understand
In legal language, necessary heirs are those who have a legal right to a part of the inheritance left by a deceased person. In the current Civil Code, which was last updated in 2002, article 1,815 stipulates that this group includes descendants (children and grandchildren), ascendants (parents and grandparents) and spouses.
Anyone in one of these positions is guaranteed the right to receive, in an equitable manner, the mandatory division of 50% of the inheritance assets, named legitimate.
The calculation of the legitimate inheritance is based on the value of the assets existing at the beginning of the succession process, subtracting from the assets the expenses incurred with the funeral and any debts that the deceased may have left.
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The other 50% of the equity is listed as available inheritance. In it, the destination of goods is free and can benefit anyone.
Spouse: loss of status
If Congress approves the text presented by the jurists, the spouse will lose the status of necessary heir and will be excluded from article 1,845 of the Civil Code, which lists the direct beneficiaries of the inheritance.
Family and Succession Law experts consulted by InvestNews have different opinions about the new wording of the Civil Code that will be discussed in the Senate.
Flavia Andradepartner in the litigation area at TozziniFreire Advogados, highlights that the text makes the succession process less imposing.
“The spouses themselves will now decide the succession together, whether through the property regime, but also in the future, through a will or donation”, says the lawyer.
Now the lawyer Miriane Ferreira is against the measure. Known for answering questions about family law on social media, Miriane created an online petition against the removal of spouses from the list of necessary heirs. For her, the change will directly affect women.
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“In many countries, the spouse competes directly with descendants or ascendants. Why, then, in Brazil, where women occupy a clearly vulnerable (economic) position, are we witnessing such legislative regression?”, says the text of the petition on the internet.
New family configurations
Experts also point out that the reform of the Civil Code seeks to resolve inheritance disputes, especially in reconstituted families, those formed by the union of a couple with children from previous relationships.
Laisa Santosa specialist in Estate and Succession Planning at Fundação Getulio Vargas (FGV), explains that, in this family configuration, each spouse has already built up their own personal assets throughout their lives. And this accumulation of assets occurred without the participation of the partner in the new relationship. “These are couples who do not want their assets to be shared beyond their children,” he says.
There are also couples who choose to marry under a regime of total separation of assets. “This is the type of union in which the couple does not wish to share even what was acquired during the relationship, much less after the death of their partner,” he points out.
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What about the spouses?
If the spouse lose the status of necessary heirhe would still be entitled to the inheritance in the order of hereditary succession, the rule of which is provided for in article 1,829 of the Civil Code.
The first in line are the descendants (children and grandchildren), the ascendants (parents and grandparents) and, then, the spouses.
In practice, if the deceased person did not leave a will, the assets will be passed on to the parents, grandparents, children and grandchildren. In the absence of any of these, the assets will automatically go to the spouse.
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A caveat is in the very willexperts say. If the document contains a block on the spouse's assets, he or she will not be included in the division of assets.
In some property regimes, there is also provision for a half-share, which corresponds to half of the couple's common assets that were acquired during their lifetime.
It has an effect on partial community of property (standard regime), with the assets acquired after marriage, and in the regime of universal communionwith all the assets accumulated by both before and after the marriage. In this case, it is necessary to confirm the choice of regime in a prenuptial agreement (contract).
In both the current text and the draft Civil Code, the spouse retains the right to live in the property acquired by the couple, if they have no place to live after the death of their partner.
There is also the usufruct over some assets of the inheritance, such as the income from a rented property, if it is proven that there is no financial means.
For the lawyers consulted, the reform of the Civil Code should increase the demand for succession planning in Brazil, a mechanism still rarely used by most families.
“The new rules will require individuals to be more proactive in organizing their assets to ensure that their wishes are respected after their death,” highlights José Rubens Constant, lawyer at the J Legal firm.