Portuguese 
English 
Spanish 
5 min of reading 
5 comments 
The Proposal to Reform the Civil Code Removes the Spouse from the List of Necessary Heirs, But Reinforces Housing Protection and Creates Usufruct for Those Who Can Prove Vulnerability. Understand What Changes in the Pocket and on the Roof of Married Families and Those in Stable Unions.
The proposal under consideration in the Senate redefines who is in the legitimate succession. According to the new wording, “necessary heirs are the descendants and the ascendants”, which excludes the spouse from this mandatory reserve. In practice, the husband or wife no longer has an automatic right to half of the unavailable assets when there are children or parents. Joint ownership is not inheritance. Joint ownership continues to depend on the property regime, but it is not confused with the hereditary portion.
This change places the spouse in the third order of succession: they inherit only if there are no descendants or ascendants, except by testamentary provisions. The current rule, from the 2002 Code, had expanded protection for the spouse. The 2025 proposal rebalances the distribution by prioritizing direct descendants, with a direct impact on blended families.
It is important to remember the stage of the legislative process. The PL 4 of 2025 is under consideration in the Senate, filed on January 31, 2025, and awaiting dispatch. The text can still be amended in committees and in the Plenary before any eventual submission for sanction.
-
The government requests the Federal Revenue Service for a new system to automate the income tax declaration, reducing errors, time, and bureaucracy for millions of Brazilians.
-
Pix in installments, international Pix, and contactless payment without internet: the Central Bank revealed the new features coming to the tool that is already used by almost every adult in Brazil.
-
Mercado Livre has just started selling medications with delivery in up to three hours to your door, and this move could completely change the way Brazilians buy medicines on a daily basis.
-
In Dubai, rising tensions from the war in the Middle East are causing super-rich individuals to leave the Gulf and direct their fortunes to a new financial refuge in Asia.
Real Right to Housing, Housing Protection Has Been Expanded
Although the spouse is removed from the legitimate succession, the proposal maintains and specifies the real right to housing over the property that served as the family’s residence, reinforcing its protective nature. The current wording of art. 1.831 already guarantees the surviving spouse the right to remain in the family home, regardless of the property regime, as long as it is the only property of that nature to be inventoried.
The STJ has reiterated that the right of housing exists to guarantee dignified living and can prevent the judicial sale of the property or the dissolution of the condominium when that frustrates its social purpose. In specific situations, the court admits mitigation of the institution if it does not serve its function, for example, when the survivor has sufficient resources to maintain their own housing. In short, it is a protection of the roof, not a transfer of ownership.
The preliminary draft turned into PL expands this shield. In addition to reaffirming the right for spouses or partners, it opens the possibility of sharing the right to housing by other vulnerable heirs or successors who depended on that residence, making clear the focus on the social aspect of the family residence. Housing is a priority.
Usufruct for Vulnerable Spouse, When the Judge Can Grant It
Another innovation is the so-called “assistance usufruct”. The text allows the judge to establish usufruct over the inheritance assets to guarantee the subsistence of the surviving spouse or partner who can prove financial insufficiency. This usufruct ceases if the person acquires sufficient income or assets or forms a new family. It is a legal response to cases of economic vulnerability, especially in unions where one partner dedicated themselves to the home and does not have their own income.
In practice, usufruct can apply to property, investments, or income from the deceased estate, ensuring a minimum flow for housing, food, and care. Unlike legitimate succession, it does not confer ownership rights but use and enjoyment of the assets. It is a calibrated solution to ensure dignity without distorting the distribution among descendants and ascendants.
Stable Union, Property Regimes, and Real Sharing Scenarios
The effects vary according to the property regime and the existence of children. In partial communion, for example, the survivor maintains the joint portion of what was acquired for consideration during the life together. Joint ownership is half of what is common, it is not inheritance. In the legitimate inheritance, the new rules of succession apply: first the descendants, then the ascendants, and only then the spouse or partner.
The proposal also values the registration of the stable union for certain property and grant effects, harmonizing rules between marriage and cohabitation. In scenarios with children only from one of the spouses, the distribution tends to follow the protective axis of the direct lineage, reducing conflicts of competition with the spouse. The stated goal of the project was to eliminate the succession competition of the spouse with descendants and ascendants, a sensitive topic in property separation and blended families.
When there are no descendants or ascendants, the spouse or partner follows the order of succession and may inherit, in addition to maintaining the right to housing if the requirements are met. These scenarios will be detailed in regulations and in jurisprudence, as already occurs today.
Wills and Pacts, How Planning Gains Importance
If the spouse is removed from the legitimate succession, the wills tend to gain prominence in family planning. The proposal allows the renunciation of the status of heir in a prenuptial or cohabitation pact and organizes clauses to prevent litigation. Those who wish to benefit the spouse beyond the joint assets must organize succession by will or well-drafted pacts, respecting legal limits.
The pacts now admit conditions linked to the existence of other successors and, according to the text, the renunciation does not automatically exclude the right to housing, unless there is an express provision from the parties. Thus, the contractual instrument aligns with the central goal of the reform: to protect housing and subsistence, without imposing legitimate succession on the spouse when there are descendants or ascendants.
For families with diversified assets, it is advisable to combine wills, life insurance, and planned donations with marital pacts to avoid surprises in the inventory. The trend, confirmed by notarial entities and legal practice, is for growth in succession planning when the subject comes to legislative attention.
Deveria ser urgente casamento depois de 2002 virou um roubo legalizado com essa história do cônjuge ser herdeiro necessário de bens particulares aqueles que cada um já tinha antes de se conhecerem. As pessoas e famílias estão sendo roubadas.
Correto. O que foi construído durante toda uma vida para os filhos passam quase que integralmente para uma pessoa que se casou com os bens cda família já construídos e que nunca suou para este patrimônio.
Correto. O que foi construído durante toda uma vida para os filhos passam quase que integralmente para uma pessoa que se casou com os bens da família já construídos e que nunca suou para este patrimônio.
Direito aos bens construído pelos pais deve ser dividido entre os filhos na morte dos pais família nenhuma construiu nada
A lei deve ser impessoal mas não injusta, tem que se analisar caso a caso. Nem todas as mulheres casam por interesse. E nos casos em que os tais herdeiros são ingratos e não ligam para o pai, e esse conhece e decide ter uma companheira, e essa venha a cuidar e se dedicar ao esposo até que a morte os separe !? É justo deixá-la nas mãos dos ingratos !? Que não valorizaram o pai que lhes deu a vida, vai valorizar a estranha?