A sucessão legítima na legalidade constitucional

Abstract

This dissertation aims to investigate whether legitimate succession, as codified in the Civil Code, is adequate to fulfill the role of Succession Law within the framework of constitutional legality. As will be demonstrated, the 2002 Civil Code, replicating the structure of the 1916 Civil Code, establishes legitimate succession through a purportedly neutral approach with fixed and rigid criteria, prioritizing the family entity over the individuals who compose it. This normative rigidity results in a succession model that is progressively disconnected from historical and social reality, rendering it incapable of fulfilling its constitutional function of ensuring social solidarity. Given this scenario, a reform of legitimate succession is proposed in its objective aspect, incorporating mechanisms that make it more functional and aligned with constitutional values. In this regard, the inclusion of parameters such as the improvement quota (quota de melhoria), the expansion of the right of habitation, preferential allocation, and patrimonial segregation is suggested. Ultimately, the objective is to assign a functional profile to legitimate succession, in accordance with constitutional legality and the contemporary reality of family successions.