The succession regimes of the partners and spouses have been equalized after the trial of the Extraordinary Resource 878,694/MG by the Supreme Federal Court (STF), occurred in 2017, and the consequent declaration of unconstitutionality of the Article 1,790 of the Civil Code, which dealt exclusively with the succession rights of the partner.
Fixed by the Supreme Court the thesis for the Theme 809, with general repercussion, the application of the Article 1,829 of the Civil Code, which provides for the order of inheritance rights for both spouses and partners. The Superior Court, however, did not indicate whether the article would be the only one applicable to the companions or whether the equivalence of stable union to marriage would be extendable to the other provisions, that is, for all succession purposes.
Therefore, the question arose whether the Article 1,845 of the Civil Code, which defines which heirs are needed, should also be applied to the companion. If so, they would join descendants, ascendants and spouses in a special class of heirs, to whom it belongs, the legitimate part, that is, to them is mandatorily destined half of the assets of the inheritance. The question has divided the scholars.
On the one hand, some argue that the equivalence between succession regimes is not absolute, with the exception of the application of Article 1,845. By this understanding, the companion would not have been elevated to the status of necessary heir, since, in the case of a restrictive rule of rights, an extensive interpretation would not be possible. The article would have a restricted list and only the law could expand its scope.
This position is defended by Rolf Madaleno and Mario Luiz Delgado, who also states that it is not up to the doctrine or jurisprudence to regulate stable union and attribute to it the effects of conjugal society, thus transforming stable union into a forced marriage. They are legally different institutes, with different legal natures by express legal determination, and it is not possible for the judiciary to make the legislator's times on the matter.
On the other hand, renowned jurists such as Flávio Tartuce, Zeno Veloso and Giselda Hironaka, representatives of the school of constitutional civil law, advocate the inclusion of the companion in the list of necessary heirs, given the succession allocated with the decision of the Supreme Court, mainly considering the equalization of the different family entities, present in the Federal Constitution, in accordance with its Article 226.
Despite the intense doctrinal debate, based on the recognition expressed by the Third Panel of the Superior Court of Justice (STJ), in judgment of 2018, that the companion would be necessary heiress,[1] our courts have applied the full inheritance equalization of the partners to the spouses, even though there was no position of the higher courts in Repetitive Regimen – it is not, therefore, a binding understanding.
However, in June of this year, the Court of Justice of Rio Grande do Sul decided to exclude the companion from sharing in a separation of property pact.[2] This is an action filed by the companion against the daughters of the deceased to annul the sharing held, in which she would not have been contemplated as the necessary heiress.
In his vote, the rapporteur judge states that the deceased would have formalized a private contract of stable union with established regime of absolute separation of assets in 2014, with no evidence of inability of the parties to carry out the act, which would be valid for all legal purposes.
He then recalls that the effects of the Supreme Court's decision for the unconstitutionality of Article 1,790 of the Civil Code were modulated. The understanding would only apply to judicial probate without the decision reaching res judicata and extrajudicial probate in which there was no public deed.
Considering that the death occurred in 2015 and the public deed was drawn up in 2014, the effects of the Decision of the Supreme Court of 2017 would not go back to the case. It would not be up, therefore, to speak of equalization of the companion to the spouse for inheritance purposes.
Based on these arguments, that Court reformed the judgment and upturned the appeal, to consider valid the deed regarding probate and sharing assets that excluded the companion as the necessary heiress.
Mario Delgado, commenting on this judgment, indicates that this is the first decision that expressly mentions the fact that the companions are not necessary reciprocal heirs, which may be relevant for other cases.
However, as published article by the Brazilian Institute of Family Law (IBFDAM), Delgado also points out that: "However, the surviving companion, in this specific case, is not a necessary heir, not because of the regime of assets of absolute separation, but because the Supreme Court did not want to ensure this status to the companion, as was clear in the judgment of the declaration embargoes in RE 878.694".
It is perceived, therefore, that the issue of the companion as a necessary heir is far from unanimous, which reinforces the importance of giving adequate treatment to this type of relationship in wealth and succession planning, so that there is full understanding and discernment about the issue, its consequences and the legal uncertainty that still permeates the theme.
Sources:
MADALENO, Rolf. Legitimate Succession. GEN Group, 2020.
GONÇALVES, Carlos R. Brazilian civil law - Succession law - v 7. Saraiva Publishing House, 2021.
TARTUCE, Flavius. Civil Law - Succession Law - v. 6. GEN Group, 2021.
[1] STJ, REsp 1.357.117/MG, 3rd Class, rel. min. Ricardo Villas Bôas Cueva, j. 13.03.2018, DJe 26.03.2018
[2] Civil Appeal 50002762120178210088, Eighth Civil Chamber, Court of Justice of RS, rapporteur: Mauro Caum Gonçalves, Tried: 30-06-2022
