12/23/2021
The Brazilian Civil Code establishes the separation of property regime as mandatory for any marriage or stable union of a person over 70 years.
However, the Precedent 377 of the Brazilian Federal Supreme Court (STF) mitigates the effects of this rule, authorizing the community of property acquired in common effort during marriage or union subject to the legal separation regime, which has led many couples to include, in prenuptial agreements and stable union declarations, a clause excluding the effects of the aforementioned Precedent 377.
There is, however, a debate in the Brazilian Courts as to the validity of such provision.
In this context, the Brazilian Superior Court of Justice (STJ) recently analyzed the issue and maintained the effectiveness of the prenuptial agreement in which the aforementioned Precedent 377 of the STF was set aside.
The case analyzed by the STJ (Special Appeal 1922347) has its origin in a dispute involving the widow and the heirs of her deceased husband. The widow claimed the right to share property left by her deceased husband, whom she married when he was 77 years old, while the heirs argued that she and the deceased had signed a prenuptial agreement ruling out the effects of Precedent 377 of the STF.
The STJ rejected the widow’s appeal claim, considering that the prenuptial agreement signed is fully valid, even with a more restrictive provision than that provided for by law (considering the Precedent 377), which must be interpreted according to its purpose, that is, to confer protection of the assets of the elderly.
According to the Justice Raul Araujo, this is the ruling in the 4th Chamber of the STJ involving this matter.
