Inheritance Law is one of the oldest and most fundamental areas of Civil Law. It regulates the transmission of a deceased person's assets to their heirs or legatees, and is permeated by principles such as family continuity and asset protection. In this article, we explore eight interesting facts about the subject, focusing on the concept of estate, the types of succession, and other relevant aspects.
1. Estate is not synonymous with inheritance.
Although often confused, estate and inheritance have distinct meanings in Inheritance Law. The estate refers to the set of assets, rights, and obligations left by the deceased, while inheritance is the patrimony transmitted to the heirs after the conclusion of the inventory. The estate is represented by the executor in the judicial process and includes both the material assets and the debts of the deceased.
The executor also plays an essential role in representing the estate in court, both in the fulfillment of debts and in the administration of assets until the division of property. Therefore, the estate is a dynamic concept that only ends with the completion of the probate process and the definitive transfer of assets to the heirs.
2. The Principle of Saisine
In Brazil, the transfer of assets occurs automatically upon the death of the testator, according to the principle of saisine , provided for in article 1.784 of the Civil Code. This principle ensures that there is no interruption in the ownership of the assets, guaranteeing that the heirs immediately assume the rights and obligations left by the deceased.
The application of the principle of saisine also aims to prevent situations of patrimonial abandonment. An indivisible inheritance is transmitted to the heirs as a single unit, governed by condominium rules until the division occurs. This avoids disputes among the successors and ensures greater legal security.
3. Unclaimed and Vacant Inheritance
When the deceased leaves no known heirs, the assets are initially declared as an unclaimed inheritance. During this period, an appointed curator manages the estate until any heirs are identified. If no heir is located within one year, the inheritance is declared vacant and becomes the property of the State, as provided for in article 1.819 of the Civil Code.
Managing unclaimed inheritances includes measures to preserve assets, such as paying off outstanding debts and maintaining existing assets. In the case of vacant inheritances, the resources can be used for public purposes, representing a solution for estates without a direct family destination.
4. The influence of the Marriage Regime
The marital property regime chosen by the spouses has a direct impact on inheritance. In the regime of universal community property, for example, the surviving spouse is entitled to half of the common property, regardless of competition with descendants or ascendants. In the regime of mandatory separation of property, the spouse competes with the heirs only in relation to assets acquired for consideration during the marriage.
The legislation also provides for specific situations for stable unions, guaranteeing rights equivalent to those of spouses with regard to inheritance. This evolution seeks to ensure the protection of the surviving partner, recognizing the peculiarities of contemporary family relationships.
5. Equality Among Children
The 1988 Federal Constitution eliminated differences between biological children, adopted children, and those conceived outside of marriage. All possess the same inheritance rights, reaffirming the principle of equality and the dignity of the human person. This progress represents a break with previous legislation, such as the 1916 Civil Code, which discriminated against illegitimate children.
This equality also extends to situations of adoption and assisted reproduction, reflecting the commitment of Inheritance Law to keep pace with social transformations and promote inclusion within the family.
6. Prohibition of Succession Agreements
Brazilian law prohibits contracts regarding future inheritances. This prohibition, stipulated in article 426 of the Civil Code, aims to preserve patrimonial autonomy and avoid premature family disputes.
The prohibition of inheritance agreements also seeks to ensure that the transfer of assets occurs only after the death of the testator, maintaining the stability of property relations during their lifetime. Exceptions to this rule are widely debated in legal scholarship, highlighting the need for modernization in certain aspects.
7. Types of Succession
There are two main types of succession:
- Legitimate succession: It occurs according to the order of inheritance established by law. It includes descendants, ascendants, surviving spouse, and collateral relatives up to the fourth degree.
- Testamentary succession: This results from provisions made by the deceased in a will. In this case, up to 50% of the estate can be freely allocated, respecting the portion reserved for the legal heirs.
Some legal scholars also highlight the existence of mixed succession, in which both legitimate and testamentary succession coexist. Furthermore, the legatee is considered a successor by singular title, receiving specific assets, while the heirs are successors by universal title.
8. The Role of Inventory
Probate is the procedure intended to ascertain the assets, rights, and debts left by the deceased, allowing for their distribution among the heirs. It can be judicial or extrajudicial, depending on the existence of conflicts and the presence of minor or incapacitated heirs. Extrajudicial probate, provided for in Law No. 11.441/2007, offers greater speed and simplicity, provided there is consensus among the interested parties.
During probate, issues such as the existence of a will, the determination of each heir's inheritance share, and the settlement of the deceased's liabilities are also assessed. The choice between judicial and extrajudicial procedures should take into account the specific circumstances of each case.
For a more in-depth look at the role of a lawyer in probate proceedings and best practices for conducting this process, check out our article " The role of a lawyer in probate proceedings: How to conduct the process effectively ".
Bonus: what is pacta corvina?
In Brazilian Civil Law, pacta corvina is a type of agreement expressly prohibited, which aims to conduct negotiations or contracts regarding the inheritance of living persons. The Latin expression, meaning "agreement of the crow," refers to the carrion-eating habit of this bird, which waits for the death of another animal to feed on its remains.
In a legal context, analogy refers to a person who, motivated by financial interest, seeks to secure someone else's assets while they are still alive.
This practice is prohibited by article 426 of the Brazilian Civil Code, which establishes that " the inheritance of a living person cannot be the object of a contract ." The prohibition is based on the protection of the patrimonial autonomy and dignity of the owner of the assets, preventing third parties from speculating or profiting from the expectation of someone's death.
Furthermore, a pacta corvina is considered null and void, meaning it produces no legal effects and is ineffective for all purposes. This prohibition also seeks to avoid family disputes and preserve harmony among heirs, as well as reinforcing that dispositions regarding one's assets should be made freely and consciously, usually through a will.
To handle inheritance matters ethically and legally, it is essential to seek guidance from a specialized lawyer. Estate planning, for example, allows for the organization of the transfer of assets with legal security and respect for current legislation, avoiding practices such as pacta corvina ( agreements made without prior consent ).
The closing thought
Inheritance law plays a fundamental role in the organization of assets and the protection of the family. Understanding its specific characteristics is essential to guarantee legal security and the continuity of family relationships.
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References
Cavalcanti, Izaura Fabíola Lins de Barros Lôbo. Succession: from the deceased to the heirs. IBDFAM, April 01, 2022. Available at: https://ibdfam.org.br/artigos/1801/Sucess%C3%A3o%3A+do+falecido+para+os+herdeiros#:~:text=g )%20Pacto%20Sucess%C3%B3rio%20%C3%A9%20proibido,a%20aplica%C3%A7%C3%A3o%20dessa%20modalidade%20sucess%C3%B3ria.&text=O%20presente%20artigo%20teve%20como,da%20autora%20Maria%20Berenice%20Dias.
LOPOS JR., Jaylton; BORGES, Gláucia. Practical Dictionary of Inheritance Law: Fundamental Concepts Outlined. JusPodivm, 2024.
Resende Ricardo, Bruna Karoline. The historical evolution of inheritance law. Âmbito Jurídico, May 1, 2017. Available at: https://ambitojuridico.com.br/a-evolucao-historica-do-direito-das-sucessoes/#:~:text=Na%20Idade%20M%C3%A9dia%20o%20direito,assegurava%20todo%20o%20seu%20patrim%C3%B4nio.
