Deveres fundamentais da família e direito à herança: análise da possibilidade de flexibilização da legítima

Abstract

It analyzes the legitimate succession in the Brazilian legal system from a constitutional point of view, especially the constitutionalization of Civil Law, with the aim of check if the current regulation of the legitimate guarantees the author of the inheritance conditions to effectively fulfill his fundamental duties towards his family, in compliance with the dignity of the human person, solidarity, protection of the family, the social function of succession and private autonomy, or whether it is necessary to grant flexibility and adequacy to the institute to protect the most diverse specificities of inheritance law. For that, it was necessary to go through the contours of the fundamental duties of the human person and choose a concept as a guideline for this research, that is, the one elaborated by the State, Constitutional Democracy and Fundamental Rights Research Group, led by professors Dr. Adriano Sant'Ana Pedra and Dr. Daury Cesar Fabriz, from the Stricto Sensu Graduate Program in Fundamental Rights and Guarantees at the Law Faculty of Vitória. After, based on the referred concept, it was possible to verify that the legitimate cannot prevent the author of the inheritance from fulfilling his fundamental duty with his family members. In other words, it cannot prevent him from allocating the necessary assets for each member of his family to achieve a dignified life. In this sense, an exemplary list of people who have a presumed state of dependence (vulnerable) was listed, that is, of a relative nature, allowed evidence to the contrary. It was also found that, in the event that family members do not need the patrimony, the author of the inheritance can freely dispose of it based on their private autonomy. Finally, a legislative amendment was suggested in the Civil Code of 2002 to adapt it to the constitutional values and guidelines, since the fundamental right is that of inheritance and not the percentage of 50% (fifty percent) reserved for the legitimate. The research was developed using the documental and bibliographic technique, using the dialectic method and has relevance to the area of concentration of the Graduate Program of the Law Faculty of Vitória, namely, Fundamental Rights and Guarantees.