The exclusion of the spouse as a compulsory heir in the draft of the Civil Code and the impacts on Brazilian inheritance law

Abstract

Inheritance law regulates the transfer of the deceased's assets to his or her heirs and legatees, preserving the continuity of legal relations after death. In this regard, when it comes to the surviving spouse, this institute is the scene of several debates, especially regarding their position as a necessary heir. The 2002 Civil Code grants the surviving spouse this status, that is, they are given patrimonial protection on an equal basis with descendants and ascendants. However, the Draft Reform of the aforementioned Code, currently under discussion in the National Congress, intends to amend art. 1,829, no longer listing the spouse or partner as a necessary heir and returning to the status of legitimate heir, with the right to inheritance only if there are no descendants or ascendants. Thus, the Draft Proposal proposes a significant change in this case, since, by expressly excluding the spouse from the list of necessary heirs, it will have serious implications for the inheritance system, reconfiguring several patrimonial rights, as well as the balance between family ties. In view of this, the work seeks to critically reflect on the foundations, justifications and impacts of the legislative change for Brazilian inheritance law, considering the constitutional protection of the family and the principles that govern inheritance law. The methodology used was the hypothetical-deductive method, adopting as a research technique the survey of theoretical references, through the examination of books, scientific articles, electronic journals, in addition to the analysis of constitutional and infraconstitutional legislation, such as the CC/2002, among other legislation.