Reconhecimento da paternidade socioafetiva post mortem e os efeitos sucessórios decorrentes: uma análise do termo inicial da prescrição na ação de petição de herança

Abstract

The study dealt with in this monograph is based on the interest of examining the initial term of the statute of limitations of the petition for inheritance in the case of recognition of paternity post mortem, considering the jurisprudential and doctrinal positions. To this end, the present work draws a historical-social, principiological, institutional and legal parallel with regard to the evolution of the concept of family until the rise of affective ties as an essential element of the family entity as well as of the institute of affiliation, later addressing the succession effects generated from the consolidation of posthumous socio-affective affiliation. That is, the right to inheritance, materialized in the petition for inheritance whose ten-year statute of limitations, general rule of art. 205 of the CC/2002 adopted before the legal omission, starts from the transit in res judicata of the previous action of investigation of posthumous paternity according to the interpretation formed by the 3rd Class of the STJ in REsp 1.475.759-DF in order not to punish the one that did not have the recognition of the quality of heir. Therefore, despite this understanding, the debate on the initial term of the statute of limitations in the petition for inheritance still persists in the doctrinaire and jurisprudential sphere. The 4th Panel of the Superior Court itself began to differ in the sense that the initial term is the date of opening of the succession. Hence the importance of this work in listing and pondering the different positions seeking the best solution, the common good. In addition, the object of this study is of utmost relevance, since it is a contemporary phenomenon that can have repercussions on the succession aspect of any family. Moreover, in this monographic work, the hypothetical-deductive method was used, establishing an exploratory focus for the research, based on bibliographic and jurisprudential surveys.