06/01/2025
Updating the Brazilian Civil Code becomes increasingly urgent as technological advancements and social changes arise. Thus, in April 2024, a preliminary draft bill (“Bill”) aiming to make the Brazilian Civil Code (“CC”) consistent with the social changes that have arisen in the past years has been presented to the Brazilian Federal Senate.
As expected, the Bill includes, amongst the proposed amendments, succession rules regarding the transfer of digital assets. In addition to this, the Bill defines “digital assets” as “a group of immaterial assets existing in a digital context subject to economic, personal or cultural worth, whose title belongs to an individual or to an entity”.
For succession purposes, the Bill divides digital assets into three categories: (i) “Economic” – those with profit purposes and with an intrinsic economic value, such as cryptocurrency; (ii) “Personal” – those with personal and emotional value, frequently related to one’s privacy and intimacy, such as text messages and e-mails; and (iii) “Hybrids” – those with both economic and personal aspects, such as a social media account operated by a notorious person.
The Bill establishes that, in a forced heirship context, both economic digital assets and the economic benefits deriving from a hybrid digital asset, shall be transferred to the deceased’s heirs.
On the other hand, personal digital assets and the personal aspects of a hybrid digital asset shall only be transferred to one’s heirs if the deceased expressly so provides by means of a last will.
Therefore, the Bill aims not only to ensure that digital assets’ economic value is observed but also that the deceased’s intimacy and privacy are respected.
Currently, the Bill is under analysis by the Brazilian Federal Senate and, upon its conclusion, it shall be formally submitted to both Brazilian legislative houses (Federal Senate and House of Deputies) for voting, and, once approved, the Bill shall be submitted to presidential sanction or veto, as the case may be.
In any case, the relevance of updating the CC is crystal clear: further to the alignment of its provisions with the unequivocal importance of digital estates, it also aims to protect the deceased’s rights to privacy and intimacy.
Co-authored by: Marcelo Trussardi Paolini e Isabela Rodrigues Alves de Sá e Silva
