Tax Reform and the Rush for Lifetime Gifts

Although the Brazilian tax reform has not yet fully come into force, it has already influenced the way the market and families have been behaving. One of its most visible effects is that thousands of families have begun to accelerate the transfer of their assets through lifetime gifts. According to data published by the Brazilian College of Notaries (Colégio Notarial do Brasil), more than 185,000 public deeds for real estate gifts were executed in 2025 alone, the highest number in the historical series, representing an increase of 59% compared to 2020.

The explanation appears to be straightforward: in anticipation of changes to the calculation of the ITCMD (Inheritance and Gift Tax), many families have come to view the acceleration of lifetime gifts as an opportunity to achieve greater tax efficiency.

This reaction is understandable. The tax reform established that the Brazilian States must adopt progressive ITCMD rates, limited to 8%, and Complementary Law No. 227/2026 provides that the tax will be calculated based on the fair market value of the assets. Although the exact rules applicable after the tax reform will depend on the state legislation yet to be enacted, from a tax-efficiency perspective there are relevant reasons for many families to consider transferring their assets to their successors in advance.

However, this tax-driven "urgency" addresses only one of the aspects that should be considered in the succession planning process. As a result, making a lifetime gift without assessing the specific circumstances of each family may create the false impression that an efficient estate and succession plan has been implemented, while, over time, conflicts may arise, leading to financial losses that exceed the tax savings achieved, as well as causing strain in family relationships.

Indeed, at first glance, tax savings may be an excellent reason to begin discussing the succession of family assets. However, they should not be the sole factor in determining when and how a family's assets should be organized. At the same time, both the person making the gift (the donor) and the person receiving it (the donee) should assess whether they are prepared to jointly manage the asset and understand the consequences arising from that transfer of ownership.

The first aspect concerns the patrimonial effects of the gift itself. A lifetime gift produces immediate legal effects, as the asset ceases to belong to the donor's estate and becomes part of the estate of the recipient (the donee), who acquires legal ownership. As a consequence, the use, management, and, as a general rule, the income generated by the asset become vested in the new owner, thereby changing the family's patrimonial structure from the moment the transaction is formalized.

Even where the gift is subject to a usufruct clause, the fact remains that the donor and the donee hold concurrent rights over the same asset. Upon the death of the usufructuary, the usufruct is extinguished, whereas upon the death of the donee (the bare owner), the donee's successors take his or her place. In such a case, the usufructuary will become a co-owner with a different donee. An exception applies where the deed of gift includes a reversion clause. However, once again, have all the circumstances been properly assessed to determine whether a reversion clause is appropriate? Is the donated asset suitable for both a usufruct and a reversion clause? In the case of corporate interests, does the usufruct apply only to profits and dividends, or does it also extend to voting rights? These are matters that should be carefully discussed and aligned between the donor and the donee, since the deed of gift must expressly reflect the parties' agreement.

The second consideration concerns the compatibility of lifetime gifts with the limitations imposed by Brazilian succession law. Brazilian law adopts the principle of forced heirship, meaning that compulsory heirs are entitled to at least half of the deceased's estate. Compulsory heirs include descendants (children and grandchildren), ascendants (parents and grandparents), and the spouse or civil partner. The remaining half of the estate may be freely disposed of, either through lifetime gifts or by will. However, for a lifetime gift to be treated as part of the freely disposable portion of the estate, this intention must be expressly stated. If a compulsory heir receives less than his or her reserved share, the heir (or beneficiary) who received more than permitted must return the excess to restore the lawful distribution.

These succession rules should be taken into account when drafting the deed of gift in order to avoid not only undesirable disputes involving compulsory heirs, but also the imposition of additional tax liabilities resulting from subsequent adjustments required to restore the proper succession allocation, which would ultimately defeat the intended purpose.

There is also a third perspective to be considered: is a lifetime gift truly the most appropriate legal instrument for the intended objective? For some families, the transfer of ownership during the donor's lifetime (advancement of inheritance) fully satisfies their objectives. For others, however, the primary goal is to preserve the integrity of the family assets, regulate their management, establish family governance, and define rules for the relationship between different generations. In such cases, a lifetime gift—whether total or partial—ceases to be the only viable solution, and should be complemented by other legal instruments, such as family holding companies, family protocols, shareholders' agreements, and similar arrangements.

Therefore, lifetime gifts should not be undertaken without broader legal, financial, and family analyses. This is perhaps the main lesson to be drawn from the recent rush for lifetime gifts. The tax reform has made succession planning more urgent, but it has not made planning and multidisciplinary analysis any less important. On the contrary, the greater the concern with tax consequences, the greater the need to carefully consider the patrimonial, succession, corporate, and family implications of the decision, making the support of qualified specialists essential.