A inconstitucionalidade da interpretação restritiva à previsão testamentária para filho ainda não concebido

Abstract

The article 1799, item I, of the Civil Code of 2002 makes an exception to the rule of succession, since it allows the author of the will to include as a testamentary heir a person not yet conceived at the time of the opening of the succession. In an attempt to pacify the Brazilian doctrinal and jurisprudential understanding of the interpretation of the term "child not yet conceived" of the above device, the CJF Statement n. 268 was approved at the Third Meeting of Civil Law, which shows that the author of the will distinguish the origin of the child from the person indicated and that the interpretation of the specific clause from leaves to heir not yet conceived should be interpreted strictly. However, with the advent of the Constitution of 1988, principles such as equality between children and family autonomy have been inserted, so that they should be weighed against the principle of the will of the testator. In this sense, just like all other branches of law, inheritance law must also be applied from constitutional lenses, since the text of sentence 268 is undue and incoherent, since it allows for discrimination between children from their origin, which does not respect the principles of the isonomy of children and family autonomy.