Succession reform in the 2024 civil code draft and the exclusion of the spouse as a necessary heir

Abstract

Contextualization: This article examines the proposed 2024 Civil Code reform, which suggests excluding the spouse from the list of necessary heirs in Brazilian succession law, promoting the patrimonial autonomy of the estate's author.

Objectives: The general objective of this study is to assess the impacts of this exclusion, focusing on three specific objectives: (i) understanding the justifications for removing the spouse as a necessary heir; (ii) analyzing the effects of the reform on succession law; and (iii) discussing the controversies arising from the spouse's exclusion.

Methodology: Through a historical analysis, the study contextualizes the inclusion of the spouse as a necessary heir in the 2002 Civil Code, which aimed to protect the surviving spouse’s patrimony, especially in situations of financial dependence. The methodology used is qualitative, based on bibliographic and documentary analysis of the draft reform of the Civil Code.

Results: The results indicate that, although the proposal emphasizes patrimonial autonomy, it may compromise the spouse's protection, especially in families where economic dependence exists. The controversies include patrimonial insecurity for the spouse and an increase in family disputes. It is concluded that the exclusion of the spouse as a necessary heir reflects a paradigmatic change but requires additional protective mechanisms for the surviving spouse, aiming to balance patrimonial autonomy with legal security.