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Without protection clauses, inheritance can be divided with a son-in-law or daughter-in-law in the event of separation. Understand the risk and how to avoid losing family assets.
Few people imagine that a simple legal detail can jeopardize the wealth built over a lifetime. What should be a protected inheritance for children or grandchildren can, in certain situations, end up being shared with sons-in-law and daughters-in-law in a divorce proceeding. And the reason is simple: the absence of calls asset protection clauses in wills and deeds of donation.
Lack of clauses in the will can open a legal loophole
O Brazilian Civil Code, in force since 2002, is clear about the importance of these clauses. The Article 1.659, Section I, establishes that assets received by inheritance are not included in the sharing between spouses, since have been transferred with a clause of incommunicability.
That is: if the testator or donor does not expressly include this condition, the inherited goods they can be communicated to the spouse and, in case of separation, divided in divorce.
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O article 1.848 of the Civil Code reinforces this possibility by allowing the author of the inheritance to impose clauses of incommunicability, inalienability and non-attachability, precisely to prevent third parties from becoming owners of the assets intended for the legitimate heirs.
In other words, whoever makes a donation or leaves a will without providing for these clauses, runs the risk of seeing part of the inheritance end up in the hands of son-in-law, daughter-in-law or even creditors of the heir.
Real cases confirm the importance of the clause
The jurisprudence of Superior Court of Justice (STJ) has already confirmed the validity of this interpretation.
No Special Appeal No. 1.382.170/SP, tried in 2015, the court decided that inherited assets without an incommunicability clause could be part of the couple's division of property, according to the chosen property regime.
In another case, the STJ reaffirmed that the absence of restrictions in the will makes the good communicable in marriages under partial or universal community property regime.
These decisions serve as a warning: without careful wording in the will or donation, family assets can end up diluted in legal disputes and separations.
Property regime also influences the result
In addition to the clauses, the marriage regime chosen by the heirs plays a decisive role.
- Na partial community of property (the most common), everything acquired after marriage is divided equally, but inherited assets They are only excluded from the division if they have restrictive clauses.
- Na universal communion, all goods — including inherited ones — are communicable, unless there is an express clause to the contrary.
- Already in total separation of assets, each spouse keeps their assets, but donations and inheritances can still cause confusion if they are not well specified in the document.
In all scenarios, the absence of protective clauses leaves loopholes for litigation and legal disputes between family members and ex-spouses.
The three clauses that protect family assets
Lawyers specializing in inheritance law point out that there are three main protections that any will or donation can contain:
- Incommunicability: prevents the inherited property from being shared with the spouse or partner.
- Inalienability: prohibits the heir from selling or transferring the property, preserving it in the family.
- Unseizability: prevents the property from being taken due to the heir's debts.
These clauses function as legal shields — especially useful for families who want to ensure that their heritage continues among their direct descendants.
A warning for those who have assets and married children
According to lawyers for the Brazilian Institute of Family Law (IBDFAM), the lack of these predictions is one of the most common mistakes in wills and donations between family members.
The problem usually appears years later, in separation or inheritance processes, when the asset is judicially recognized as part of the couple's assets and ends up divided with the ex-spouse.
The experts' message is clear: those who have children who are married, in a stable union or in the process of getting married must immediately review wills and deeds, including protective clauses. This ensures that the assets remain in the desired line of succession and avoids family stress in the future.
Inheritance is protection, not a trap
Inheritance is, by definition, a way to preserve a family legacy. But without legal support, it can become the opposite: a gateway to disputes and irreversible losses.
The decision to include clauses is not bureaucratic, it is a guarantee that the wishes of the author of the inheritance will be respected and that the assets will not fall into the wrong hands.
In a country where most marriages take place under partial community of property, understanding the impact of these clauses is crucial. After all, a simple omission can be costly and turn a gift into a legal headache.
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