Initially, as already mentioned in our previous article, the legal property regime of couples living in a stable union is that of partial communion, except for cases in which one of the partners is over 70 years of age, in which the law requires that the regime it will be that of total separation or in unions in which the partners have stipulated a different regime by means of a written contract.
The Civil Code disciplined in its article 1790 that the partner would be entitled to goods acquired onerously during the term of the union, concurring with the common children, descendants only of the author of the inheritance or any other successive relative, having the right to the totality only in the absence of these.
However, the Federal Supreme Court, in the judgment of Special Appeal 878.694, declared the device unconstitutional for differentiating the rules of succession competition of the spouse and the partner.
Thus, except for the hypotheses of a different regime, when there is no will, the succession will take place in the manner provided for in art. 1829 Civil Code, which are the same rules applicable to spouses.
The partner, therefore, will compete with descendants only if the deceased has left private property, considering that he will have his half of the assets acquired during the common-law marriage protected by the moiety and, in the absence of descendants, he will compete with the ascendants, obeying the quota specified by law.
The biggest change, however, is in the preference in relation to the succeeding collateral relatives, who previously received jointly with the partner, but after the equalization the partner started to have the right to the entire inheritance, with preference to brothers and nephews, for example .
Finally, the partner is also assured the real right to live in the property intended for the family's residence, without prejudice to his participation in the inheritance, provided that it is the only one of that nature in the inventory.
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