The Brazilian Civil Code (Law No. 10.406/2002), in force since 2003, has been the subject of constant reflection and debate by jurists and legislators. After more than two decades, despite being relatively recent legislation, the National Congress is considering a draft reform bill, currently under analysis by a committee of jurists.
The proposed reform has among its main objectives the modernization and adaptation of the Code to the social, technological, and economic transformations that directly impact Brazilian law and private social relations, including family relations and inheritance law.
Among the areas of change that attract the most attention in the proposal are the modifications related to inheritance law and family law, issues that permeate the daily lives of thousands of Brazilians and have an impact on everyone's lives.
In this article, we will address the main changes suggested by the draft reform of the Civil Code, focusing on the new guidelines for inheritance and the impact on family law, as well as discussing the future prospects of this reform.
1. The Draft Bill for the Reform of the Civil Code
The reform of the Civil Code, whose proposal is currently under analysis in the National Congress, is the result of the work of a commission of jurists formed by specialists in civil law. The preliminary draft was officially delivered to the Federal Senate in April 2024, after almost a year of work.
Regarding family law, the main objective of this reform is to modernize the legislation to adapt it to the evolution of customs, new family dynamics, and the need for greater speed and justice in matters related to inheritance. Regarding the need for reform, the President of the Senate, Rodrigo Pacheco, stated that: “The officially accepted family arrangements were quite restricted. I can say without exaggeration that we have gained a compass.”
The Federal Senate has been closely following the debate, and a committee has been tasked with presenting proposals that reflect social and technological changes, such as increased life expectancy, diversification of family models, and advances in the protection of human rights. The expectation is that the changes will promote greater equity and legal certainty in family relations and in the field of inheritance law.
2. Main Changes in Inheritance Law
Brazilian inheritance law is among the most sensitive points of the Civil Code reform, since inheritance rules directly affect property issues and family estate planning. Among the proposed changes, the exclusion of the spouse from the list of necessary heirs stands out, which has generated extensive discussion in the legal field.
2.1. Exclusion of the spouse from the list of necessary heirs
Currently, the spouse is considered a necessary heir, according to article 1.845 of the Civil Code, and is entitled to a legitimate share of the estate left by the deceased, alongside descendants and ascendants. Necessary heirs are those to whom half of the deceased's estate must be compulsorily allocated, leaving the testator with only 50% of the estate to dispose of freely by will.
The reform proposes excluding the spouse from this list, meaning they would no longer have an automatic right to the legitimate share. With this change, the spouse or partner would only receive part of the inheritance if the deceased included them in a will or if there were no other necessary heirs, such as descendants or ascendants.
This exclusion has potential consequences for inheritance law and can directly impact the protection of the surviving spouse, especially in long-term marriages or stable unions. Removing the spouse from the list of necessary heirs makes inheritance law more flexible, giving the testator greater freedom to dispose of their assets. However, this freedom can generate inequalities and asset insecurity for the surviving spouse.
One of the arguments in favor of exclusion is that, in many cases, the spouse is already protected by other legal mechanisms, such as the property regime adopted in the marriage or stable union, which would justify the removal of this automatic protection. For example, when the marriage is under the regime of partial community of property, the spouse already automatically participates in the assets acquired during the union through what is called the division of assets.
On the other hand, critics of the proposal point out that, in some situations, this change could weaken the position of the surviving spouse, especially in families where they are economically dependent on the deceased, which in many cases is the situation experienced by women. Without the protection of being a necessary heir, the spouse could be in a vulnerable position, especially if the deceased did not include them in the will or if the inheritance was entirely destined for other heirs.
The exclusion of the spouse as a necessary heir also has implications for estate planning. Currently, many couples rely on the rule of forced heirship as a way to protect the surviving spouse. With the proposed change, the testator will need to better plan the distribution of their assets, using instruments such as a will to ensure that the spouse or partner receives an appropriate share of the estate, should they so desire.
This occurs due to the testator's increased freedom to freely dispose of their assets, which can facilitate the allocation of resources to other purposes, such as charities, friends, or other family members who would otherwise not be entitled to the inheritance. This reflects a trend towards greater autonomy and flexibility in inheritance rules.
2.3. Inclusion of New Forms of Digital Inheritance
With the advancement of technology, the existence of digital assets (such as social media accounts, currencies, and other digital assets and online archives) has generated new challenges for inheritance law.
The proposed reform of the Civil Code includes the regulation of the concept of digital assets and digital inheritance, allowing the owners of these assets to determine, while still alive, the fate of their digital assets. Furthermore, the draft bill also proposes that legal heirs may request the deletion or conversion into memorials of deceased individuals' social media profiles.
Currently, this issue is not clearly regulated in the Brazilian legal system, and the reform aims to fill this gap, ensuring legal certainty for the disposal of digital assets, which may have not only sentimental but also economic value.
3. Modifications in Family Law
Other topics addressed in the proposed reform, which have direct consequences for inheritance, are related to family law. The changes aim to reflect new family configurations and ensure greater protection of individual rights, preserving equality and dignity in family relationships.
Among the innovations in family law, the legal recognition of new family models stands out, such as multi-parent families and same-sex civil unions, which already have consolidated jurisprudence in the higher courts, but lack express provision in legislation. The proposed reform seeks to formally include these new family structures in the Civil Code, offering them the same legal protection afforded to traditional nuclear families, ensuring inheritance, social security, and property rights.
Another proposed change within family law is the relaxation of rules regarding property regimes in marriage and stable unions. The reform aims to allow greater autonomy for spouses and partners in defining their property regimes, including facilitating changes to the regime during the marriage through agreement between the parties. These changes intend to modernize property relations within marriage, adapting legislation to new economic and social realities.
4. Future Perspectives and Challenges
The draft reform of the Civil Code is still under analysis in the National Congress, but it is already sparking extensive discussions among jurists, lawyers, and civil society. The proposed changes have the potential to profoundly transform family and inheritance law in Brazil, making it more suited to new social and technological dynamics.
Although the reform was widely debated in the committee of legal experts, there are points of divergence, especially regarding the exclusion of the spouse from the list of necessary heirs and the regulation of digital inheritance. Some critics of the relaxation of the forced heirship rule argue that this could harm the surviving spouse, especially in families where there is economic dependence between generations.
Regarding the practical implementation of the new rules on digital inheritance (such as social media accounts and crypto assets), it is argued that these "assets" are often controlled by foreign companies, which can hinder the enforcement of court decisions regarding the transfer of such assets.
The expectation is that the preliminary draft will be widely discussed in both legislative houses throughout 2024 and 2025, with possible changes to the initial text. Even so, the pressure for modernization of the Civil Code is significant, and many experts believe that the reform should be approved in the coming years, bringing substantial changes to the Brazilian legal system in an attempt to keep pace with changes in social relations.
Although challenges and debates remain regarding the implementation of these changes, the reform has the potential to create a more dynamic and inclusive legal environment, reflecting the needs and expectations of contemporary society.
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References
BAPTISTA, Rodrigo. Civil Code: learn about the proposals of legal experts to modernize the legislation. Senado Notícias , April 16, 2024. Available at: https://www12.senado.leg.br/noticias/infomaterias/2024/04/codigo-civil-conheca-as-propostas-de-juristas-para-modernizar-a-legislacao . Accessed on: October 18, 2024.
BAPTISTA, Rodrigo. New Civil Code: Senate receives draft from jurists and will analyze the text. Senado Notícias , April 17, 2024. Available at: https://www12.senado.leg.br/noticias/materias/2024/04/17/novo-codigo-civil-senado-recebe-anteprojeto-de-juristas-e-analisara-o-texto . Accessed October 18, 2024.
BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code. Official Gazette of the Union , Brasília, DF, January 11, 2002. Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm . Accessed on: October 13, 2024.
HIGÍDIO, José. Civil Code reform excludes spouses from the list of necessary heirs. Conjur , Apr. 19, 2024. Available at: https://www.conjur.com.br/2024-abr-19/reforma-do-codigo-civil-exclui-conjuges-da-lista-de-herdeiros-necessarios/ . Accessed on: Oct. 18, 2024.
TARTUCE, Flávio. The reform of the Civil Code and legitimate succession. Migalhas , August 27, 2024. Available at: https://www.migalhas.com.br/coluna/familia-e-sucessoes/414057/a-reforma-do-codigo-civil-ea-sucessao-legitima . Accessed on: October 18, 2024.
