Da substituição fideicomissária: análise jurídica dos seus efeitos sucessórios face à prole eventual advinda da adoção.

Abstract

Adoption is an institute that aims to put a third stranger into a family, giving the condition of son/daughter to the adopted. In turn, the substitution trustee is the institution that ensures the tester the possibility to test in favor of persons who are not conceived yet at the time of the opening of the succession, called potential progeny, by “deceased” previously designated fiduciary which is the person who will get the inheritance or legacy until her death, the implement of the condition or the result of certain deadline, responsible for conveying the part of the inheritance which is the subject of the institution property to the eventual offspring, called a trustee. Due to the requirement of the non-existence of the offspring during the opening of the succession, the possibility of this offspring, by adoption, is questioned since the principle of legal equality of children guarantees the same rights and duties to all children, not depending of the origin. thus, this study aims to verify the possibility of the eventual offspring being constituted by an adopted son/daughter, analyzing the assumptions presented by the doctrine homeland, as well evaluating the characteristics and requirements of both the institution of adoption as the replacement trustee, observing if it is able to cover that, in order to see the treatment given by the doctrine, jurisprudence and legislation on the topic by the homelands, which is: the scope of effects of inheritance of the replacement trustee by the offspring in case of adoption. Therefore, the deductive method as a method of approach, the historical-evolutionary as a method of procedure, and the indirect documentation, by literature, as a research technique, are used. By this, it appears that any offspring arising from adoption can configure as the replacement trustee, because of the principle of equality of the children, since the testator has not expressly forbidden her to do so, since that ultimate desire must be considered, because of the principle of private autonomy and being the testament, a transaction unilaterally.