O Reconhecimento da filiação post mortem o termo inicial do prazo prescricional para se pleitear a herança

Abstract

The present research addressed the controversy that exists regarding the starting point of prescription of the inheritance petition action when proposed by the son who was recognized after the death of his parent. It was demonstrated that the doctrine and the jurisprudence are divided between the following theses: one that considers that the final and unappealable decision that recognized paternity is the starting point of the prescription of the inheritance petition action; the other current argues that, when proposed by a son recognized post mortem, the prescription begins to flow from the moment of opening of the succession. In front of this scenario, the pertinence of this study is evidenced by the need to pacify the question, since the legal security of the country is compromised with the delivery of substantially different decisions. It was also about the discussion that exists about the statute of limitations of the inheritance petition action, which does not deserve further debates, since the controversy lies only in the scope of the doctrine, since in the jurisprudence the understanding in the sense of statute of limitations is pacific, according to provides for summary 149 of the STF. With a view to pursuing the general objective of this study, which is to point out which is the current on the initial term of the prescription that must be adopted by the jurisprudence of the country, in a first moment, the general aspects of the right to filiation, its concept and legislative evolution were approached , as well as the recognition of posthumous paternity according to Law n. 8,560/1992 and subsequent amendments. Basic elements of the right to succession and the right to inheritance were also exposed. At the last moment, it dealt with the inheritance petition action and the two hypotheses mentioned, exposing their respective foundations. As for the methodological bases, the hypothetical-deductive approach was adopted as a method of approach, with a qualitative study, since in order to obtain the intended results it was not necessary to produce statistical or quantitative data, and, as for the research technique used, it was I use bibliographical research, embodied in laws, doctrines, scientific articles and judicial decisions related to the case. In the end, in the above context, the understanding was that the prescription of the inheritance petition action must flow from the opening of the succession, since the thesis defended by the other current permeates the system of legal uncertainty, in line with the most recent understanding of the STJ.