01/07/2025
In a recent ruling, the Superior Court of Justice (STJ) unanimously held that the estate’s sole property, occupied by the deceased’s heirs, remains protected under the impossibility to levy execution upon the family’s house, and therefore cannot be attached to satisfy debts left by the decedent.
In the specific case (REsp No. 2.111.839/RS), a creditor filed a provisional
remedy against the estate of the deceased debtor to secure payment of the debt, seeking the seizure of the estate’s only property. The judge granted a preliminary injunction, and the creditor then filed a principal claim for specific performance with an alternative request for conversion into monetary damages.
After the legal proceedings, the lower court ruled in favor of the creditor, upholding the injunction ordering the arrest of the property, on the grounds that, since partition of the estate had not yet occurred, the estate remains liable for the deceased’s debts. The judgment was confirmed by the Court of Justice of the State of Rio Grande do Sul.
The estate appealed to the STJ, which issued the aforementioned decision, under the judge-rapporteur Justice Antônio Carlos Ferreira, holding that the impossibility to levy execution upon family home is a matter of public policy, enforceable in any proceeding, provided the property is the sole residence used for permanent housing, and that such exemption can only be lifted in the situations expressly provided for in Article 3 of Law No. 8,009/1990, which governs the unseizability of the family home.
Justice Ferreira emphasized that although the heirs are liable for the deceased’s debts up to the limits of their inheritance shares (Article 1,997 of the Civil Code), such patrimonial liability does not remove the protection granted to the family home.
In this regard, he highlighted that, pursuant to the principle of saisine (Article 1,784 of the Civil Code), heirs succeed the decedent not only in the ownership of assets but also in the legal protections attributed to the deceased, which includes the impossibility to levy execution upon the family.
Given that it was undisputed the property in question serves as the residence of the heirs, the STJ ordered the cancellation of the attached property. It also clarified that the family home exemption does not extinguish the debt nor absolve the estate from patrimonial liability; rather, it imposes a limitation on the means of enforcement.
Based on these grounds, the STJ established the following legal thesis: “1. The impossibility to levy execution upon family home applies to the estate, provided the property is used as a family residence. 2. The absence of formal partition does not remove the protection of the family home”.
Our Dispute Resolution team is fully available to clarify any questions regarding the subject.
Authored by: Olivia Rodrigues Parisi
