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STJ Confirms: Grandchildren Have Right to Inheritance from Grandparents When Father or Mother Has Already Passed Away, by Representation Succession, Ensuring Equality Between Family Branches.
Many believe that when a child of the deceased has already died, their share of the inheritance simply disappears. But Brazilian law provides an important protection: succession by representation. Article 1,851 of the Civil Code establishes that if the direct heir is not alive at the opening of the succession, their descendants (in this case, the grandchildren) take their place and receive the share that would belong to the father or mother. This means that grandchildren are not excluded from the inheritance: they inherit directly from the grandparents, preserving the right that originally would belong to the already deceased parents.
What The Law Guarantees in the Division of Inheritance
Succession by representation seeks to ensure justice among family lines. Without this rule, grandchildren could be disadvantaged compared to uncles.
Practical Example:
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- A man passes away and leaves three children.
- One of these children had already died but left two children (grandchildren of the deceased).
- By succession by representation, the grandchildren receive together the share that would belong to the deceased father, divided among themselves.
In this way, all branches of the family are represented.
The Position of STJ on the Subject
The Superior Court of Justice (STJ) has already consolidated the understanding that grandchildren have the right to succeed their grandparents by representation.
In recent decisions, the court reaffirmed that the rule in Article 1,851 of the Civil Code is clear and aims to prevent inequalities among descendants.
The court has also emphasized that succession by representation must be respected even in cases of large-value inheritance or complex inventory disputes.
Justice Luis Felipe Salomão, in a ruling in 2020, stated:
“Representation is a mechanism that ensures family balance, preventing one branch of the succession from being excluded by the simple passing of the original heir.”
The Role of Succession by Representation in Inventory
In practice, succession by representation is directly applied in inventory and sharing processes.
- If the child is alive, they inherit normally.
- If the child has already passed away, the grandchildren take their place.
- If there are no children or grandchildren, the inheritance goes to the ascendants (parents, grandparents) or collaterals (siblings, nieces, and nephews).
This rule also prevents disputes among family branches, as the division is done by line (i.e., by family “trunk”).
Practical Cases Recognized by the Justice
In 2022, the TJSP confirmed the right of two grandchildren to receive the portion of the deceased grandfather that would belong to their already deceased mother, even in the face of resistance from uncles.
The TJRS also judged a case where grandchildren claimed the inheritance from their grandfather against the uncles. The court reaffirmed the mandatory application of succession by representation, granting the grandchildren 1/3 of the inheritance that would belong to the father.
These decisions reinforce that grandchildren cannot be overlooked in favor of uncles, as the law ensures them full rights to succeed.
Impacts for Families and Heirs
For families, this rule has significant consequences:
- Protection of grandchildren: prevents them from being left vulnerable regarding family assets.
- Balance in sharing: ensures that each family branch receives its rightful share, even if the direct heir has died.
- Legal security: reduces disputes and litigation, as the rule is express and established by jurisprudence.
Experts Highlight The Importance of The Institute
According to lawyer specializing in succession law Rolf Madaleno, “succession by representation is a mechanism that prevents historical injustices, protecting descendants who, without it, could be excluded from the sharing.”
Civil Law professor Maria Berenice Dias also emphasizes: “the principle of equality among descendants ensures that the death of a child does not erase the rights of their heirs. Succession by representation corrects this gap.”
Justice for All Generations
The recognition of grandchildren’s rights to inheritance from grandparents when the father or mother has already passed away is more than a legal provision: it is a guarantee of family balance and solidarity between generations.
With the confirmation from the STJ, it is clear that no family branch should be left behind. Succession by representation is the tool that ensures that the history and rights of a family continue to be respected, even in the absence of one of the original heirs.
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