A sucessão legítima na união estável: a concorrência do companheiro sobrevivente com descendentes comuns e unilaterais do autor da herança.

Abstract

The present research has as scope the study of the legitimate heritage in the stable union by analyzing the competition of the surviving spouse with common and unilateral children of the author of the inheritance. Heritage is the transference of property from one person to another by mortis causa. Stable union is the public coexistence, continuous and lasting with the purpose of constituting a family. The art. 1.790 of the Civil Code outlines the rules on the succession of the companion, granting heritage rights to the cohabentant in competition with the descendants, descendants and other successive relatives of the author of the inheritance. However, a situation not described by the device is that which relates to the heritage of the companion to the hybrid affiliation, that is, the patrimonial transmission of the one of whose cases the fellow competes, at the same time, with common and exclusive descendants of the author inheritance. In this sense, in the face of the current dynamics of affective relationships, it is increasingly common for stable unions to arise in which one or both partners already have children from other relationships. The legislative omission in these cases creates a great instability for those who, in this situation, awaits a judicial demonstration. Therefore the general objective of the work is to identify the heritage in the stable union and its applicability in the Brazilian Civil Code; While its specific objectives are: (i) to analyze the stable union and its effects on the legal order; Ii) identify the succession forms in Brazilian law; And iii) to point out the form of competition of the surviving companion in the succession of the other with hybrid affiliation. For both was used as method for the collection of data the bibliographical research through the analysis of doctrine and jurisprudence homelands. From the doctrinal and jurisprudential analysis it was possible to carry out a detailed study of the stable union by examining its history, concept and constitutional protection, as well as listing its characterizing elements. Then the work examined the succession in Brazilian law emphasizing its importance, exposing its species and the order of hereditary vocation; Finally, the legitimate succession in the stable union - the central theme of the work - has been scrutinized since its regulation in Law No. 8.971 / 94 until its normatization in the Civil Code of 2002, starting then for the analysis of the new understanding of the Federal Supreme Court In Extraordinary Appeal 878.694, in order to explain how the confused succession of the surviving companion in competition with hybrid membership will occur. Pursuant to, it proposes changes in the current legislation in order to standardize the understanding of the jurisprudence, in order to avoid conflicting decisions in cases of the same nature, thus allowing for the effective and fair judicial consecration.