Se toda forma de amor vale a pena, os efeitos sucessórios serão os mesmos do casamento? estudo sobre a chance de integração do companheiro como herdeiro necessário após a inconstitucionalidade do art. 1.790 do Código Civil

Abstract

The recognition of the stable union as a family entity by the 1988 Constitution brought with it questions about the different succession effects conferred on the partner in relation to those protected to the spouse. Among these discussions, there is the possibility of assigning to the cohabitant the condition of necessary heir, considering the judgment of unconstitutionality of art. 1790 of the Civil Code by the Federal Supreme Court (STF), which assigned the same rule of hereditary vocation to art. 1,829, but failed to pacify the understanding about the legitimate. In this way, the final end of this work reflected on the doctrinal and jurisprudential positions capable of subsidizing the quality of heir necessary to the partner and even carrying out a critique of the legitimate itself, passing through the approach regarding the general aspects of the institutes of marriage and union. stable, rules applicable to the succession regime until the unfolding of the competition in force to the consorts in the Civil Diploma. To achieve the results of this research, considering the interest of the study to all, bibliographic research techniques were used, data on the national advance of stable unions to the detriment of marriage, constitutional principles, doctrinal concepts that guide Family and Succession Law, articles related to the subject that revealed important theses to update the current succession system, as well as points of the decision that equated the succession regime of the spouse and the cohabitant to better understand the discussed topic, including from the perspective of Bill No. 3,799 of 2019 IBDFAM initiative that suggests expanding testamentary autonomy. It could be concluded that in the light of the principles of equality, affection and dignity of the human person, there is no place for hierarchy between family entities that, although with different structures, are founded on affection, so that the surviving cohabitant is assured the necessary inheritance.