União estável e seus efeitos no processo sucessório

Abstract

This paper explores the limits of the regulation of cohabitation in Brazilian law for the succession process. An analysis was made on the subject, using bibliographic research as a methodology. The objective is to understand cohabitation before the Federal Constitution of 1988 and the Civil Code of 2002, its effects on succession law, as well as to verify whether or not there are problems in the form of the constitutional and infra-constitutional norm in the regulation of cohabitation and what the effects of this family entity are within the succession process. To this end, the study begins with the trajectory of family law until its remodeling by the Constitution of 1988, passing to what is currently called family law, which went through the elevation of cohabitation to the level of family entity, being this, in turn, regulated in the private norm in an unequal way in comparison to marriage with regard to the succession process of the partner, in accordance with art. 1.790 of the CC/2002. Next, the work addresses the unconstitutionality of the aforementioned article, which was the only norm that dealt with the succession of cohabitees and, consequently, the equalization of the spouse and the partner from the RE 878.694/MG. The succession of the partner has taken on new directions with the Extraordinary Appeal 878.694/MG, the rules that until then were directed only to spouses will, according to this decision, be directed also to partners. Article 1.725 of the CC/2002 refers to the equality of spouses and partners to choose the property regime that suits them. However, if the cohabitation is not registered in the notary's office, the regime will be partial.