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Federal Supreme Court decides that both couples in a stable union or civil marriage have the same inheritance rights, including LGBTs

Wednesday, May 10, 2017
The Brazilian Federal Supreme Court (STF) has concluded a trial that discusses the comparison between spouse and partner for purposes of succession, including in homoaffective unions. The decision was rendered in the judgment of Extraordinary Resources (REs) 646721 and 878694, Both with recognized general repercussions. In the judgment performed on Wednesday (10), the justices declared unconstitutional the article 1,790 of the Civil Code, which establishes differences between the participation of the partner and the spouse in the succession of assets.
The RE 878694 deals with the union of heteroaffective couple and the RE 646721 approach the succession in a homoaffective relationship. The Court's conclusion was that there is no element of discrimination that justify the different treatment between spouse and partner established by the Civil Code, extending such effects indenpendently of sexual orientation.
In the trial, the vote of the justice Luís Roberto Barroso, rapporteur of RE 878694, prevailed, who also pronounce the first divergent vote in RE 646721, reported by justice Marco Aurélio.
In the case of RE 646721, the rapporteur, justice Marco Aurelio, was unsuccessful in denying the provision to de appeal. According to his understanding, the Federal Constitution recognizes stable union and marriage as situations of family union, but does not open space for comparison between them both, under penalty of violating the will of those who are involved, and thus, the right to freedom to opt for the union regime. His vote was followed by justice Ricardo Lewandowski.
In order to achieve general repercussion, the following thesis was approved, valid for both processes:
"In the current constitutional system, it is unconstitutional the differentiation of succession between spouses and partners, and must be applied in both cases the regime established in article 1829 of the Civil Code."
Read more: 
Julgamento afasta diferença entre cônjuge e companheiro para fim sucessório


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