Proposta de releitura da sucessão hereditária do cônjuge

Abstract

The legislator of the Civil Code (CC) of 2002 raised the surviving spouse to the category of necessary heir (art. 1845 of the CC), competing with the descendants, according to their matrimonial regime, as prescribed at art. 1,829. However, with the inclusion of women in the labor market and the allowance of divorce, the reality of today's Brazilian families is no longer the same as when the CC was drafted, being increasingly common the phenomenon of the blended families, by the union of couples who have children from previous relationships. In these families, it is not unusual that the lawful succession of one of the spouses has to combine different interests that do not move in the same direction, namely the interests of the surviving spouse, of their children in common with the deceased spouse and of children from other relationships. The new succession situation of the spouse prevents him or her from being removed from the succession. On the other hand, prohibiting the implementation of succession agreements, according to art. 426 of the CC, hinders the possibility of succession planning, which may contemplate the interests of the blended families. The rigidity of inheritance law combined with the overprotection conferred on the surviving spouse by the CC promotes the forced transmission of patrimony from the de cujus to the surviving spouse, in detriment of descendants, especially in the regimes of property separation and partial communion of goods. Based on these findings, the project critically investigates some situations in which there is a forced transmission of patrimony, as well as analyzes succession law institutes in a functional perspective, looking for possible solutions to make the spouse's succession regime more flexible and compatible with legitimate interests and concrete needs existing in family entities.