The judgment of Civil Appeal 1000348-35.2024.8.26.0236 by the Superior Council of the Judiciary of the Court of Appeals of São Paulo (TJSP) in October last year had important impacts on the validity and effectiveness of succession agreements, especially on the possibility of early renunciation of inheritance.

In the case analyzed by the court, the notary had denied the registration of the prenuptial agreement, which included clauses waiving the future inheritance. The alleged reason was that the procedure would violate article 426 of the Civil Code (CC), which prohibits the contracting of inheritance from a living person.

Faced with the notary's refusal, the couple appealed the decision that denied the registration. The court, when analyzing the case, reformed the decision and determined the registration of the prenuptial agreement.

The court recognized that the waiver of inheritance in the pact does not violate article 426 of the CC. This is because the pact does not deal with inheritance from a living person. It only expresses the expressed desire of the spouse to abstain and not participate in the succession of the other, in competition with necessary heirs.

The decision is considered important and pioneering in a context in which succession planning is becoming increasingly necessary and used, especially in families that seek to avoid conflicts and ensure the protection of family assets built over the years and generations.

In addition, the TJSP's decision privileges the couple's freedom of choice over their assets, reducing the State's interference in property decisions. After all, it not only validates the early renunciation of inheritance in certain contexts, but also highlights the importance of succession planning and the autonomy of the parties' will in decisions about their property rights.

This change in legal understanding can contribute to greater security in property and family relationships and reflects real needs and desires of contemporary society.

The jurisprudence has not yet been consolidated in relation to the (im)possibility of early waiver. There are intense academic debates on the subject and, certainly, several discussions will take place before reaching a consolidated understanding.

It is worth mentioning that there is a project to reform the Civil Code that proposes to change the wording of the article on inheritance of a living person. The objective is to expressly include the following exception: "Contracts with the object of inheritance of a living person are not considered to be: (...) that allow the spouses or cohabitants, by prenuptial or cohabitation agreement, to renounce the condition of heir".

In other words, if the reform is approved, the debates on the subject will end, given the express permission in the code. This will ensure greater legal certainty for those who wish to enter into agreements with the aforementioned waiver clauses.