The Court granted partial relief to a special appeal to establish that the hereditary share to which the partner is entitled, when she shares with the other heirs – children in common and exclusive children of the decedent –, must be equal to that of the descendants when it concerns the private assets of the de cujus*.
The appeal was filed by the Public Prosecutor’s Office of Rio Grande do Sul against a ruling of the Court of Justice of Rio Grande do Sul which, in an interlocutory appeal in the course of an estate inventory action, decided that the institutions of marriage and stable union should have different treatment and that, with respect to the assets acquired during the stable union, the partner should receive a hereditary share equal to that of the inventoried party’s children in common and exclusive children.
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The rights of the partner in the transmission of the inheritance
For the Public Prosecutor’s Office, when the partner shares with the child in common and, further, with the exclusive children of the deceased, the rule of item II of article 1.790 of the Civil Code should be adopted, since this would be the one that best serves the interests of the children – even if the filiation is hybrid –, and one cannot guarantee the cohabitant a larger share to the detriment of the deceased’s children, since she is already entitled to the ideal half of the assets acquired for consideration during the union.
The Public Prosecutor’s Office also alleged a violation of article 544 of the Civil Code due to the donation of a property by the de cujus to his partner in 1980 (an asset that would be part of the common patrimony of the partners, since it was acquired during the union).
In the case analyzed, the man lived in a stable union with the appellee from October 1977 until the date of death, having one child with her. In addition to this child, the deceased had six other exclusive children.
Unconstitutionality
The rapporteur, Justice Paulo de Tarso Sanseverino, stated that the Federal Supreme Court had already recognized as unconstitutional the differentiation of the succession regimes of marriage and the stable union, when judging RE 878.694.
“It happens that article 1.790 of the CC was incidentally declared unconstitutional by the Distinguished Federal Supreme Court, upon the judgment of RE 878.694, with it being determined that the provisions of article 1.829 of the CC regarding the succession regime in marriage be applied to the succession regime in the Stable Union”, he observed.
Concurrence with the descendants
Regarding the recognition, by the appealed ruling, that the cohabitant would be entitled to the same share as the children of the decedent with respect to the assets acquired during the marriage, the Justice observed that, when judging REsp 1.368.123, the Second Section of the STJ established the understanding that, under the terms of article 1.829, I, of the CC of 2002, the surviving spouse, married under the regime of partial community of property, will concur with the descendants of the deceased spouse only when the latter has left private assets, and the referred concurrence will be exclusively with respect to the private assets.
Sanseverino explained that, when “the application of article 1.829, I, of the CC is recognized and in light of the application of the succession rules relating to marriage, article 1.832 of the CC is applicable, the analysis of which must be carried out at once by this Superior Court, notably in light of the minimum quota established at the end of the referred provision in favor of the spouse (and now partner), of one quarter of the inheritance, when concurring with his or her descendants”.
According to the rapporteur, Statement 527 of the V Conference on Civil Law established that the most reasonable interpretation of the normative statement of article 1.832 of the Civil Code is that the reservation of one quarter of the inheritance is restricted to the hypothesis in which the spouse concurs with the couple’s children in common and with the exclusive children of the spouse who died.
Descendants
According to the Justice, both the Federal Constitution (article 227, paragraph 6) and the restrictive interpretation of article 1.834 of the CC ensure equality among the children and the right of the exclusive descendants not to see their patrimony reduced through an extensive interpretation of the rule.
For Sanseverino, one cannot speak of a reservation when the concurrence is established between the spouse and the descendants of the decedent alone, or, further, in the hypothesis of hybrid concurrence, that is, when descendants in common and exclusive descendants of the deceased concur.
“The partial reform of the appealed ruling is therefore imperative, recognizing that the appellee will concur with the other heirs only with respect to the private assets (and not with respect to the totality of the assets of the de cujus), each one – partner and children – receiving, with respect to the referred private assets, the same share”, he concluded.
The Justice understood that no violation of the legislation had been demonstrated in the questioning brought by the Public Prosecutor’s Office regarding the validity of the donation of his property to his partner made by the deceased in 1980.
* forensic expression used in place of the name of the deceased, and author of the inheritance, under the terms of an inventory. De cujus is used for masculine and feminine, singular and plural.
Source: STJ
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