Sucessão do cônjuge e do companheiro sobrevivente: análise da ordem de vocação hereditária e da autonomia na renúncia à condição de herdeiro

• Ano de defesa: 2026
• Autor(a) principal: Lima, Isabella Aureli de Camargo
• Orientador(a): Daneluzzi, Maria Helena Marques Braceiro
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso embargado
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Direito das sucessões; Ordem de vocação hereditária; Cônjuge e companheiro sobreviventes; Renúncia à condição de herdeiro; Autonomia privada
• Palavras-chave em Inglês: Law of succession order of intestate succession; Surviving spouse and cohabiting partner; Waiver of heirship; Private autonomy
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/46814

This dissertation examines the succession rights of the surviving spouse and the surviving cohabiting partner under Brazilian law, focusing on the order of intestate succession and on the autonomy of intending spouses, spouses, and cohabiting partners to waive, during their lifetime, their heirship status to one another. The analysis is grounded in an understanding of marriage and stable union as socially relevant forms of family formation, structured upon affection, solidarity, and equality. The study addresses the position of the spouse and the cohabiting partner within the order of intestate succession and identifies controversies surrounding concurrent succession, marked by doctrinal and jurisprudential disagreement regarding its interpretation and the parameters for potential legislative reform. In this context, the dissertation analyzes Bill No. 4 of 2025, introduced by the Federal Senate, offering critical reflections on the amendments proposed therein. The research concludes that the general rules of intestate succession require revision, proposing that the concurrence of the surviving spouse or cohabiting partner with descendants be limited while preserving concurrence with ascendants as to the entirety of the estate and exclusive succession in the absence of such heirs. The second chapter examines the growing social expectation of contractual freedom in the regulation of intimate relationships, particularly concerning their patrimonial effects, within a context marked by diverse family arrangements and asset-accumulation projects. In light of the Brazilian Federal Constitution of 1988, and with human dignity as its guiding principle, the study argues for the compatibility of private autonomy with the principles of equality and solidarity, as well as with the fundamental right to inheritance, as applied to lifetime waivers of heirship by spouses and cohabiting partners. Based on the Brazilian Civil Code of 2002, the dissertation concludes that a waiver of heirship, when clearly expressed in prenuptial, nuptial, or cohabitation agreements, does not constitute pacta corvina and is not prohibited by civil law when interpreted in light of good faith, the social function of contracts, social practices, and accepted social morals. Its validity is also examined in relation to rules classified as matters of public order, considering the nature, purpose, and scope of normative protection and the possibility of interpretative flexibility guided by constitutional principles. The study supports the admissibility of such waivers when executed by public deed or judicial instrument, subject to case-by case scrutiny of abuse of rights or defects of consent, as well as the possibility of revocation while both parties are alive and legally capable, with irrevocability preserved after death. A critical analysis is conducted of the solutions proposed in Bill No. 4 of 2025, endorsing the provision concerning succession waivers, while emphasizing the need for an express provision allowing revocation during the lifetime of both parties and rejecting the broad and abstract nullity of non-codified contractual succession arrangements. The third chapter develops a comparative analysis with Portuguese law, focusing on the waiver of heirship status under that legal framework and examining the potential contributions of the Portuguese experience to Brazilian law.The research adopts a deductive approach, especially through constitutional and statutory analysis, bibliographical and legislative research, examination of judicial precedents, and comparative methods