SUCCESSION PLANNING AND CONFLICT PREVENTION: PRIVATE AUTONOMY IN TENSION WITH MANDATORY LIMITS AND THE RATIONAL DECISION PARADOX

Abstract

Succession Planning (SP) is currently established as an essential preventive legal organization tool to reduce the high fiscal costs and serious family conflicts that characterize an unplanned causa mortis succession. This article examines SP from an interdisciplinary perspective, emphasizing the Family Holding and the Will as efficient alternatives for corporate governance and fiscal optimization of assets, making it possible to transform the nature of the succession from universal to singular. We analyze the dogmatic tension between the private autonomy of the deceased and the imperative limits established by the Civil Code (CC), especially the inviolability of the reserved portion (legítima) (CC, Art. 1,846) and, primarily, the controversial prohibition of succession pacts (CC, Art. 426). Furthermore, by using Behavioral Economics, we discuss the paradox of non-adherence to planning: the choice, despite being rationally advantageous by reducing asset losses from 10% to 20%, is often postponed due to the action of deep cognitive biases, such as mortality salience and the status quo bias. There is an urgent need for a new functional-constitutional interpretation of Succession Law, in line with the thesis of Rafael Cândido da Silva (2017), to guarantee the effectiveness of private autonomy in the pursuit of both family and corporate stability.