EQUAL INHERITANCE RIGHTS BETWEEN COMMON-LAW MARRIAGE AND MARRIAGE IN BRAZILIAN LAW: ADVANCES, DIFFERENCES, AND CHALLENGES

Abstract

This paper analyzes the equalization of inheritance rights between stable unions and marriage in Brazilian law, highlighting its historical evolution, jurisprudential advances, and remaining challenges. Initially, it addresses the transformation of the concept of family, which ceased to be exclusively centered on marriage to recognize other forms of family constitution, especially after the 1988 Federal Constitution, which granted legal protection to stable unions. Despite this recognition, inequalities persisted in the area of inheritance, mainly due to article 1,790 of the 2002 Civil Code, which established less favorable rules for partners in stable unions compared to spouses. The research shows that this distinction was the target of intense doctrinal criticism and generated legal uncertainty, being subsequently declared unconstitutional by the Supreme Federal Court in the judgment of Extraordinary Appeals No. 878.694 and No. 646.721, in 2017. The decision established the understanding that there is no constitutional justification for differentiated treatment between spouses and partners, and the same inheritance regime should be applied to both forms of family entity. However, even with the judicially recognized equalization, the study demonstrates that practical and theoretical challenges still exist, especially due to the absence of specific legislative regulation, which can generate divergences in the application of the law and compromise legal certainty. Thus, it is concluded that inheritance equalization represents an important advance in Family Law, but still requires normative consolidation to guarantee greater effectiveness and uniformity in the protection of family relationships.