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Legislative Change Under Debate Rekindles Discussions on Inheritance, Family Protection, and Autonomy in Succession Planning.
The proposed reform of the Civil Code under discussion in the Senate foresees a profound change in inheritance rules: the husband, wife, or surviving partner will no longer have an automatic right to a part of the inheritance when there are children or parents of the deceased.
According to the text of the Bill No. 4/2025, the spouse is removed from the category of necessary heir in these cases and loses the mandatory participation in what is called the legitime, falling behind descendants and ascendants in the order of succession.
The bill, however, is still in process and has not yet come into effect.
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Current Rules of Spousal Inheritance
Under the current rules of the Civil Code of 2002, Article 1,845 includes three groups as necessary heirs: descendants, ascendants, and spouse.
This means that these individuals cannot be completely excluded from the inheritance, as they have the right to the legitime, which represents at least half of the transmitted estate, a portion that cannot be disregarded by will.
Furthermore, the surviving spouse, in various situations, not only receives their share of the couple’s community property but also competes for the inheritance of the deceased’s private assets, depending on the property regime adopted.
In the partial communion regime, for example, the widower or widow retains half of everything acquired onerously during the union and still participates in the division of exclusive assets left by the deceased.
In conventional separation of assets, consolidated jurisprudence has begun to recognize that the spouse also competes for the inheritance with descendants, even without common property, except in cases of legal separation.
This framework has sought, over the past few years, to reinforce the property protection of the surviving spouse, reducing the risk that someone would be left with no participation in the assets built during the marriage or stable union.
What PL 4/2025 Changes in Succession
The PL 4/2025, presented by the Senate President Rodrigo Pacheco in January 2025, makes a shift in this logic.
According to the wording sent to Congress, only descendants and ascendants will expressly be included in the list of necessary heirs.
The spouse and partner will no longer have a guaranteed right to the legitime when there are children, grandchildren, parents, or grandparents.
In the order of hereditary vocation, the spouse remains listed as a legitimate heir, but in a subsequent position.
The legitimate succession is organized, in general terms, as follows: first, the descendants are called; if they are absent, the ascendants come into play; only then does the surviving spouse or partner appear, and finally, the collaterals.
When there are living descendants or ascendants, the project removes the mandatory competition of the spouse in the division of the legitimate inheritance, so that the entirety of this portion goes to children, grandchildren, parents, or grandparents, except in cases of contrary testamentary disposition.
Another sensitive point concerns private assets.
Today, even in a conventional separation of assets regime, the spouse may compete for the inheritance of the deceased’s exclusive assets.
The text of the reform eliminates this succession competition, especially in total separation, bringing the law closer to doctrinal criticism that pointed out the incentive to marriages for property interests.
In practice, real estate and other assets acquired before the marriage or maintained under separation of assets tend to be fully directed to descendants or ascendants, without obligation to reserve part for the step-parent, step-mother, or surviving partner, unless there is a will contemplating that person.
Share, Housing, and Protection Guarantees
While removing the spouse from the status of necessary heir in several scenarios, the project preserves and reinforces some minimum protective mechanisms.
One of them is the share.
In the community regimes (partial or universal), the spouse continues to have an automatic right to half of the assets acquired onerously during the coexistence.
This portion is not technically inheritance but a direct result of the chosen property regime.
The text under discussion also maintains and details the real right of habitation over the family residence, allowing the widower or widow to remain in the house where the couple lived, even if the property was inherited by children or other heirs.
Additionally, discussions in the committee point to complementary protection instruments, such as usufruct over part of the assets designated to descendants and the so-called compensatory provision, a type of value set by the court when the surviving spouse primarily dedicated themselves to the family.
These provisions seek to address criticisms and misinformation that the reform would leave widows and widowers “with nothing.”
The Senate itself released official clarifications explaining that the proposal separates inheritance from share and combines housing and livelihood guarantees with greater freedom for succession planning.
Succession Planning and Autonomy with a Will
By removing the spouse from the list of necessary heirs when there are descendants or ascendants, PL 4/2025 expands testamentary autonomy.
The available portion of the inheritance, corresponding to half of the estate, can now be more freely allocated, including to the spouse, stepchildren, institutions, or other individuals chosen by the decedent.
Experts argue that the change aligns with more diverse family realities, where asset building is no longer tied to a single provider.
For these cases, the project aims to facilitate personalized arrangements: those who wish to protect their spouse can do so through a will or succession planning during their lifetime; those who prefer to prioritize children and parents can structure the distribution within legal limits.
At the same time, analysts point out that a large part of the population does not create wills or seek preventive legal advice.
Processing in the Senate and Public Debate
The PL 4/2025 is under analysis in a temporary Senate committee dedicated to the reform of the Civil Code, with a deadline for submitting amendments open until March 2026.
The matter is formally still in process.
Throughout 2025, the committee held public hearings on topics such as general part, digital law, personality and civil liability, and is expected to advance to specific discussions on successions and family.
Various amendments presented by senators seek to alter the treatment given to the spouse in succession.
There are proposals to suppress provisions that change the order of hereditary vocation, as well as suggestions that restore the spouse’s competition with descendants and ascendants.
So far, however, there is no final report consolidating what the text will be taken to vote.
The debate has gone beyond the legal sphere.
Opinion polls indicate that about 70% of respondents defend the spouse’s permanence as a necessary heir.
Impact on Property Regimes and Daily Life of Families
In a scenario where the reform is approved, couples in partial communion would continue with the equitable division of assets acquired onerously during the union.
The difference is that, if there are children or parents, the legitimate inheritance of the deceased’s private assets would pass entirely to descendants or ascendants.
In total separation of assets, the survivor would not inherit, by law, the other’s exclusive estate, depending on a will to receive any portion.
These changes make it more relevant to review prenuptial agreements, stable union contracts, and wills. Law firms and specialized entities have recommended that couples discuss the topic.
In a situation where the text can still be modified, the discussion remains open: the removal of the spouse from the condition of necessary heir tends to strengthen the freedom of property planning or expose widows and widowers to greater risks, especially when they need protection the most?
Engraçado o autor desse projeto não levar em conta que na maioria dos casos esses Ben’s adquiridos durante a união do casal tem a participação financiera de ambos .No meu caso eu sempre ajudei meu esposo finaceiramente e moralmente em tudo. Acho o projeto injustissimo.
De acordo c vc,concordo plenamente c isto,ambos lutaram p ter juntos seu patrimônio,são DONOS ABSOLUTO”de tudo,e vem essa”JUSTIÇA “meter o bedelho nos direitos deles.Eles devem dar a quem eles quiserem,pq são unicamente deles.Esta errado essa justiça,pq há herdeiros q não merecem,no meu caso um filho q mais de anos anos não fala comigo,nem mesmo qdo tiver ataque cardíaco e fiquei 1 mês hospitalizado,nem pergunta ao menos como estou.E justiça isto?Pimenta no **** dos outros e refresco né?
Filhos já matam os pais por causa de herança, se essa lei for aprovada o povo tem que invadir o senado e a câmara dos deputados,esses vermes se esquecem que nós que temos que decidir por nós, nao essa **** que so fazem ****,e nós também esquecemos dos nossos direitos, brigam por causas muito menos importantes e uma coisa dessa nao pode deixar passar,quem construiu um patrimônio que decide com quem vai ficar filhos abandonam os pais e depois aparecem na hora Da partilha
Estou c suas palavras
Eu não concordo para ambas partes acho os congege deve ter direito sim até porque filho nenhum separado na maioria das vezes vem cuidar do seu pai ou mãe quem vai cuidar vai ser a esposa com quem passou a vida toda para mim é prioridade é sim o casal ,os filhos e assim sucessivamente.
Isto mesmo,só quem sabe ,o q passa na pele as dificuldades.Filhos somem,só aparecem na hora da herança.****!!!