Raoul Bergesch: the spouse who marries is the heir by the division of property

The important confusion that is seen on this topic is the lack of information of the establishments of sharecropping and inheritance. The legislator of the Civil Code of 2002 supposed to make clear the distinction between the above phrases. However, what we see in observe is a fable that plagues society basically.

This is as a result of many frequent folks at regulation imagine that when a wedding is ruled by the conventional separation of property, the husband or spouse is not going to be entitled to any share of the property left behind. of couscous, And such assertion is utterly mistaken, as a result of on this case the surviving spouse is an heir (has proper to inherit) however is not a sharecropper (has no proper to share).

Let us clarify. From a technical level of view, sharecropping is half of household regulation whereas inheritance is associated to succession regulation. Further, as per the current rule, the spouse can’t be the heir and the sharecropper at the identical time in respect of the identical property. As per the property association adopted, the surviving spouse will probably be the shareholder or the heir, by no means each, in respect of a selected asset.

The sensible Professor Flavio Tartues made a desk [1] So that the understanding of the topic may be facilitated. let’s watch.

regime wherein the spouses inherit by consent

Regimes wherein the spouse or associate doesn’t inherit in contest

  • Partial Communism of the Estate Regime (when the deceased leaves private property)
  • rule of final participation in discoveries
  • System of conventional/whole separation of property
  • Rule of partial neighborhood property (when the decedent leaves solely frequent property, no private property)
  • governance of common neighborhood property
  • regime of authorized or obligatory separation of property

In this sense, it is needed 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 in the sense that Article 1.829 of CC02, I, a public The association is the rule, and it can’t be eliminated at will of the events.

Therefore, since the regulation doesn’t present for an exception succesful of ruling out the conventional separation of property in contestation, i.e., the surviving spouse has the proper of succession, the events have the possibility to decide on to marry below this regime. doesn’t have school, with out it the different essentially turns into his successor.

In different phrases, from the second an individual chooses to marry below the rule of conventional separation of property, mechanically – and inevitably – his or her spouse turns into his or her heir when she or he dies.

A false impression that had been established in the common public was the distinction between what occurs to property when a married couple separates below the rule of conventional separation of property and when one of them dies. This is as a result of, in the occasion of dissolution of the matrimonial society, neither occasion has a proper to the property of the different, since the property is non-public, that is, they don’t talk.

In essence, the present Civil Code permits married individuals below the regime of conventional separation of property to decide on the system that can govern their property in the occasion of separation, nevertheless it leaves those self same folks to outline the course of all their property. doesn’t authorize. his demise. , as your surviving spouse will, by irrevocable authorized imposition, be your needed heir.

At this level, it is attention-grabbing to gather an excerpt from the profitable vote in REsp 1.382.170/SP, verbatim,

“He who determines the order of hereditary occupation is the legislator. He could in life set up a system for separation which is separate from demise. And he did. He set up a system for the division of items by purpose of demise.” of and separation in life consequently of divorce for an additional system. The legislator made a distinction. So, right here the interpretation is systematic, sure, however inside the respective techniques. I can’t take one idea right here and one other idea there, make a rift and make a unique rule from the one in the Code. (…) as I set out in the dissenting opinion issued in REsp nº 1.111.095/RJ – though the speculation made there is not precisely the identical as in the current case – ‘It is vital to focus on that, if the regulation has made sure reservations concerning the proper of inheritance attributable to the common or partial equality of the rule of marriage, or obligatory separation, no reservation shall be made if the chosen rule is non-compulsory. made separation of property, in order that, on this case the husband or spouse a married couple below such regime, in addition to in partial communication below nobody who has no frequent property, is exactly what the regulation sought to protect, as a result of, in precept, he can be with out property, with out safety, as a result of, based on the earlier rule, inheritance There would nonetheless be no property to share (attributable to the presence of descendants) aside from not being present in.”

The precept strikes in the identical route, as verified by studying assertion 270 of the CJF, Ipsis Litter,

“Article 1.829, merchandise 1, ensures solely the surviving spouse the proper to compete with the writer’s descendants for inheritance when married below the rule of conventional separation of property, or if there is partial communion or last participation. Married below the rule of inquest, the deceased had private property, instances wherein competitors is restricted to such property, and the frequent property (meação) have to be shared completely amongst the descendants.

With a purely didactic job, allow us to analyze the desk under, which seeks to assist perceive the matter.

Rule of conventional separation of property in the occasion of finish of marital partnership (divorce/separation/dissolution of secure union)

Provision for the conventional separation of property in case of the demise of one of the spouses

household rights

succession regulation

The events opted for a regime wherein items aren’t communicated.

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

Each spouse will reside along with his or her personal particulars, one having no authority over the different.

The surviving spouse ought to be the heir.

There is no option to research this matter with out citing the gaping legislative flaw in the textual content of Article 1,829, I, of CC02. The above instrument refers to Article 1640 of the identical Diploma, however the truth is, it ought to quote Article 1641, which supplies for the obligatory separation of property.

This mistake opened a niche in the previous for a wider authorized dialogue, debating whether or not the legislator had made an exception solely in instances of obligatory separation of property (Article 1641) or by excluding the surviving spouse from competitors in the inheritance. . Adoption of conventional segregation regime of items.

At current, the prevailing place is that there is an error in the above machine which have to be corrected by the legislator, as the latter supposed solely to restrain the surviving spouse of matrimonial society by authorized separation of property from the standing of heir, sustaining was, thus, the surviving spouse of a matrimonial society ruled by the conventional separation of property as a needed heir.


reference
Brazil. civil Code. Available at: www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm. Accessed: 8 August. 2022.

, Superior Court of Justice. ERESP 1,472,945/Rj. Reporter: Antonio Carlos Ferreira. Available at: https://processo.stj.jus.br/processo/revista/doc/mediado/?componente=ATC&sequencial=49440956&num_registro=201303350033&information=20150629&tipo=5&formato=PDF. Accessed: 8 August. 2022.

, Superior Court of Justice. RESP 1,382,170/Sp. Reporter: Joao Otavio de Noronha. out there in: https://processo.stj.jus.br/processo/pesquisa/ ?tipoPesquisa=tipoPesquisaNumeroRegistro&termo=201301311977&totalRegistrosPorPage=40&aplicacao=processos.ea. Accessed: 8 August. 2022.

turtle. Flavio. civil regulation handbook: Single Quantity. eighth ed. Rio de Janeiro: Forensics; São Paulo, Metodo, 2018, p. 1692–1714.

Raul Bergesch is a lawyer in the area of enterprise regulation, specialist in asset safety, founding associate of Raul Bergesch Advogados, member of the Brazilian Institute of Business Law (IBRADAMP) and chapter regulation fee of OAB-RS, Novo. Hamburgo Subdivision.

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