The equivalence of spouse and partner for succession planning purposes


The controversy regarding the legitimacy of the stable union partner (from now on, partner) and his rights in the succession process in relation to the assets of the deceased was installed with the advent of the Civil Code of 2002.

Due to the Article 1829 of the legal document, the spouse has the right to legitimate succession of private property, beyond the joint ownership of the couple, while the partner has the right to participate in the succession of the deceased only with respect to goods purchased during the stable union. In the case of the existence of other successive relatives (parents of the deceased, grandparents, uncles, nephews), he will be entitled to receive only a third of the inheritance, according to the article 1790.

On March, the Judge of the Supreme Court Minister Dias Toffoli issued a special vote on extraordinary appeal with general repercussion, setting up  that if the legislator of the Civil Code of 2002 chose to differentiate between the two legal institutes, it is not possible to the Judiciary to equate marriage and stable union, since they are institutes with distinct rights, especially  regarding succession. In a dissenting vote to that of the rapporteur who incidentally recognized the unconstitutionality of Article 1790, Toffoli understood that “the democratic space for these debates should be respected, whereas, in the National Congress, where the alternatives to change the law as well as its respective impacts on the social order shall be further discussed”.

Toffoli understands that marriage and a stable union are separate institutes and that their legal effects for succeccion purposes are different on behalf the terms of the legislation in force, and the autonomy of the will and the choose of the  constitution of the family must be respected. The reporting judge, Barroso, confirmed the basis of his vote, stating that Article 1790 is unconstitutional and stating that “the State should protect all family structures”.