The surviving spouse’s, the widower’s, real right of habitation in the couple’s property, under the terms of Article 1,831 of the Civil Code, is guaranteed regardless of whether he owns other assets in his personal estate.
Based on this understanding, the 3rd Panel of the Superior Court of Justice denied an appeal that challenged the right on the grounds that the spouse owns other properties.
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According to Justice Villas Bôas Cueva, the rapporteur of the case at the STJ, the only condition imposed by the legislator to ensure the surviving spouse’s real right of habitation is that the property intended for the couple’s residence be the only one of that nature in the estate inventory.
“None of the aforementioned legal provisions imposes, as a requirement for recognition of the real right of habitation, the nonexistence of other assets, of whatever nature, in the surviving spouse’s own estate,” he reasoned.
Controversial requirement
The rapporteur cited the understanding of the court’s 4th Panel to the effect that the real right of habitation is conferred by law regardless of whether the surviving spouse or partner owns other properties.
Villas Bôas Cueva noted that the final part of Article 1,831 refers to the need for the property to be “the only one of that nature in the estate inventory,” but even this requirement is not interpreted literally by case law.
“It is noted that even this legal requirement — the nonexistence of other residential real property in the inheritance estate — is widely controversial in legal scholarship. That is why this court, on at least one occasion, has already set aside the literal wording of such a rule,” he said.
Widower – Affective bond
The purpose of the law, according to the Justice, is to allow the surviving spouse to remain in the same family property in which he or she resided at the time the succession was opened, as a way of realizing the right to housing and also for reasons of a humanitarian and social order, “since one cannot deny the existence of the affective and psychological bond established by the spouses with the property in which, over the course of their cohabitation, they constituted not only a residence, but a home.”
The rapporteur stated that the legislation protects the minimum interests of those who experience a moment of “undeniable distress” resulting from the death of a spouse or partner.
Sources: Conjur/ Press Office of the STJ
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