The 4th Private Law Chamber of the Court of Justice of the State of São Paulo (TJ/SP) confirmed the exclusion of siblings and nephews/nieces from succession, recognizing that the surviving spouse, even when married under a mandatory separate property regime, is the sole lawful heir. The deceased left no parents, grandparents, children, or will.
The reporting judge, Carlos Castilho Aguiar França, emphasized that the marital property regime does not interfere with the order of succession. According to him, the property regime governs the effects during the marriage, whereas succession law governs the transfer of assets upon death. Thus, even in marriages subject to mandatory separation of property, the surviving spouse is entitled to the entirety of the estate, pursuant to Article 1,829, III, of the Brazilian Civil Code.
The decision was unanimous, with Justices Mauricio Velho and Vitor Frederico Kümpel concurring with the reporting judge. The case reinforces the primacy of the statutory order of heirs over the marital property regime where there are no surviving descendants or ascendants.
Case No.: 1010433-44.2024.8.26.0248