25/02/2025
The prenuptial agreement (“Prenup”) is an important tool for estate and succession planning not only because it allows the parties to adopt the marriage regime that will suit them better but also because it allows them to regulate other important questions relating to the couple’s life, provided that principles of human dignity, equality between the spouses and sharing, are duly observed.
Although it can address a broad range of questions relating to the couple’s life, there are some material limitations to a Prenup – or, at least, the use of a Prenup may trigger intense legal debates.
For example, Article 426 of the Brazilian Civil Code (“CC”) establishes that a written agreement such as a Prenup can’t dispose of the estate expected to be inherited from a person that is alive (pacta corvina).
On the one hand, there are those who, upon a more traditional interpretation of the mentioned Article of the CC, understand thatn inheritance waiver under a Prenup is not enforceable; such waiver would be illegal, not to mention that it could expose that spouse who is in a more vulnerable economic situation.
On the other hand, those who advocate for the enforceability of the inheritance waiver under a Prenup , allege to observe the parties autonomy principle as well as the wishes of contemporary society.
In a recent decision regarding this matter, the São Paulo High State Court (“TJSP”) admitted the register, before the Real Estate Registry, of a Prenup that contained mutual waivers, granted by each of the spouses.
Such a decision was based onthe following arguments: (i) the validity of a Prenup’s single provision is not enough to prevent the enforceability of the entire Prenup, whose main purpose is the adoption of the marriage regime; (ii) the enforceability of such specific provision must be eventually argued and decided by the competent legal court; and (iii) the argument that there would be a violation of Article 426 of the CC should not prevail, considering that the CC itself authorizes, in its Article 2,018 that an individual can provide for the allocation of his/her estate, during his/her life, provided that the rights of his/her forced heirs are duly observed.
In addition, as properly referred to in the TJSP decision, Project Bill No. 4/2025 (“PL 4/2025“), which aims to amend the CC, expressly allows spouses to mutually waive each other’s inheritances, which, if approved, would solve the above discussion.
Thus, as both the TJSP decision and the PL 4/2025 seem to reflect a legal trend of emphasizing private autonomy and contractual freedom, their eventual approval is likely to generate a strong impact on succession planning.
Our Private Client team will follow up on this matter to identify opportunities in succession planning and is available to provide further information on this or any other related matter.
Co-authored by: Marcelo Trussardi Paolini and José Silvano Garcia Junior
