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Even Without Notary Registration, Those Who Lived in Common-Law Marriage May Have a Right to Inheritance. But Judicial Proof of Cohabitation Is Essential and Can Decide Who Actually Participates in the Partition of Assets.
The absence of a public deed does not prevent the right to inheritance for those who lived in common-law marriage, as long as the relationship is recognized by the courts.
According to family law experts, it is necessary to demonstrate that the cohabitation occurred publicly, continuously, durably, and with the intention of constituting a family.
Without this judicial recognition, especially when there are disputes among heirs, the partition cannot be carried out.
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The Article 1,723 of the Civil Code defines common-law marriage as a family entity under these conditions.
As explained by lawyer Hellen Moreno, once the union is recognized, the surviving partner has the same inheritance rights as a spouse in a civil marriage.
“In these cases, the partner has the same protection regarding inheritance as a spouse, according to Article 1,829 of the Civil Code,” she stated.
Thus, the partner competes with the deceased’s descendants according to current legislation.
What the Law Requires to Confirm Common-Law Marriage
Registration at a notary facilitates proof of the union, but is not mandatory.
In the absence of a deed, lawyers explain that it is necessary to file a post-mortem common-law marriage recognition action.
The process requires the presentation of evidence demonstrating the cohabitation, such as joint accounts, tax declarations, inclusion in health plans, insurance policies, rental contracts signed by the couple, photographs, and witness statements.
According to legal experts, judicial recognition is what guarantees inheritance rights, as notarial registration serves only as a means of proof, not as a requirement for the existence of the union.
Without this recognition, the surviving partner cannot formally participate in the inventory.
How the Partition of Assets Works After Recognition
With judicial recognition, the rules of the Article 1,829 of the Civil Code apply, which address succession.
In this case, the surviving partner competes with the deceased’s children, respecting the asset regime that governed the union.
Experts emphasize that the absence of a deed does not change the proportion of inheritance, it only makes the process longer due to the need for judicial proof of the relationship.
Lawyers note that, in practice, disputes between partners and heirs are common when there is no consistent documentation.
The lack of evidence can lead to questions about the beginning of cohabitation or even the existence of the common-law marriage, which prolongs the time and cost of the process.
Types of Evidence Accepted by the Courts
Courts often consider various elements to prove public and lasting cohabitation.
Among the main ones are documents that demonstrate a common address, utility bills in both names, bank statements, shared health plans, and photographs of family occasions.
Testimonies from close individuals are also used to confirm the stability of the relationship.
According to experts, the more consistent and chronological the documentation, the higher the likelihood of recognition.
Isolated evidence without temporal relation or clear connection can create doubts and delay judicial decisions.
Why Registering the Union at a Notary Can Prevent Conflicts
Although not mandatory, registering common-law marriage at a notary is seen by legal professionals as an effective way to prevent family disputes.
The public deed formalizes the beginning of the relationship and allows for the definition of the asset regime, serving as a document for easy proof in the event of death.
“Formalization facilitates proof and avoids litigation, but its absence does not eliminate the right. The essential point is to demonstrate in court that the union existed in fact,” said lawyer Hellen Moreno.
According to lawyers, it is also possible to create property agreements to regulate the management and partitioning of assets.
This measure, along with documentation of shared life, provides greater legal security and reduces the margin for disputes after the death of one of the partners.
What to Do When the Partner Dies Without Registration
When death occurs without the union being formalized, experts recommend immediately gathering documents that prove cohabitation and filing a post-mortem common-law marriage recognition petition.
This action allows the surviving partner to participate in the inventory and partition of assets.
Lawyers also suggest preserving contracts, statements, insurance policies, and other evidence that reinforce public cohabitation.
According to professionals in the area, acting quickly helps avoid the loss of documents and facilitates the process.
Legal Guidance and Prevention
To avoid future disputes, experts advise couples in common-law marriage to formalize the relationship and keep documentation organized.
This includes updating dependents in health plans, pensions, and other benefits, as well as keeping receipts for joint expenses.
Lawyer Átila Nunes, from the Reclamar Adianta service, states that prior planning is essential to avoid conflicts after one partner’s death.
The service is free and can be requested via email at jurídico@reclamaradianta.com.br or via WhatsApp at (21) 99328-9328.
According to legal experts, the lack of registration does not remove the right to inheritance, but imposes the burden of proving the union before the Judiciary.
When there is resistance from family members, this recognition becomes the central point of the property dispute.
Technical guidance and proper documentation are identified as the main guarantees for ensuring that inheritance rights are preserved.
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