In February 2024, the Brazilian Supreme Federal Court (STF) decided that the mandatory separation of property regime in marriages and stable unions for individuals over 70 years old can be changed by the will of the parties involved.
In summary, the Court understood that maintaining the obligation of separation of property as provided in Article 1,641, II, of the Civil Code contradicts the right to autonomy of elderly persons.
According to this understanding, the obligation based solely on age criteria prevents individuals who are of age and capable of legal acts, i.e., enjoying their mental faculties, from choosing the most appropriate property regime for them, thus resulting in age-based discrimination which goes against the Federal Constitution.
In the case analyzed by the Court, the Appellant was the partner of a man with whom she entered into a stable union when he was over 70 years old. In the first instance, the judge ruled that the deceased’s partner was also an heir, so she could be part of the estate along with the deceased’s children. However, the São Paulo Court of Justice (TJSP) denied the Appellant the right to be part of the estate by applying the separation of property regime to the stable union.
The STF upheld the decision of the TJSP, as there was no prior indication from the deceased regarding the property regime, so the Civil Code rule should apply in this case.
Thus, for marriages or stable unions entered into before the STF ruling, the couple may make the change through judicial authorization or a public deed. However, the change will only impact the division of assets from the moment of the change, not affecting the period prior when there was a separation of property.
In accordance with the principle of legal certainty, the change will not affect ongoing probates, only future cases.
Therefore, the solution adopted by the STF aims to safeguard the dignity, autonomy of will, and equality of elderly persons by establishing the following thesis: “In marriages and stable unions involving individuals over 70 years old, the separation of property regime provided for in Article 1,641, II, of the Civil Code, can be waived by the express will of the parties through a public deed.”
