In May 2017 the STF (Supreme Court) concluded the trial of two special appeals on the right of partners in the succession of their peers, being one of the process regarding a hetero-affective relationship and the other one regarding a homo-affective relationship.
Until the trial of these two appeals, there was a disparity between the inheritance rights of the spouse and the partner, due to the writing of Civil Code’s articles 1,829 and 1,790.
To the surviving spouse should be applied to article 1,829 of such diploma, which provides that the spouse should receive equal share as the descendants, except in cases in which there were more than four descendants and the spouse was also ascendant of the heirs with whom he/she should compete, occasion in which the spouse would necessarily receive a quarter of the inheritance.
In the case of marriage without offspring, the spouse appears in the line of succession in competition with the ascendants, being entitled to receive the same share as them. If there are neither descendants nor ascendants, the spouse is entitled to receive the inheritance in its entirety and only if there are no descendants, ascendants and spouse, the inheritance is due to the collaterals of the deceased.
On the other hand, in the cases of stable union, the applicable article used to be another one, which is the 1,790 of the Civil Code. According to this provision, the partner only had inheritance rights over the goods onerous acquired during the validity of the stable union, and his share would only be equal to those of the descendants if they were common children of the couple. In cases of competition with descendants of the inheritance‘s author , other successive relatives, or in the absence of other heirs the rules of succession were different, and the partner had a smaller share.
It happens that, with the recent decisions of STF, article 1,790 was considered unconstitutional, and article 1,829 came to be applied not only to marriage, but also in cases of stable union.
Thus, we see a great evolution in favour of the partners, once they start to compete with the descendants and ascendants, in all the patrimony of the inheritance’s author, in a manner that their portions are all in the same value. Also, even if the inheritance’s author has other family successors, the partner appears in front of these ones in the line of succession, fact that would not be possible with an application of the article 1,790.
Finally, the STF supplemented the decision by saying that it had already equated the homoaffective unions with hetero-affective unions, including its effects. Thus, the decision to equate stable unions with marriage is not only valid for hetero-affective unions, but also for homosexual couples.