The invisibility of non-traditional families in the intestate succession rules of the Brazilian 2002 Civil Code

Abstract

In this paper, I figured out that the intestate succession rules in the 2002 Civil Code are insufficient to provide for an adequate inheritance protection for non-traditional families. I used the deductive method, using both the civil-constitutional law and the critical legal studies as theoretical frameworks. I observed that the current intestate succession is based on a specific type of family, which is based both on biology and marriage, and that it also satisfactorily protects analogous types of families, such as cohabiting couples. I noticed that structurally different families, e.g., non-parental families, do not receive sufficient inheritance protection, even though those families have been recognized both by scholars and courts. I perceived that the intestate succession is based on a narrow, heteronormative definition of family, which wrongly excludes other intimate relationships of affection and solidarity (care and support/dependency). I concluded that legal reform is necessary, especially because succession law has an expressive function, as well as testamentary succession is not an adequate way of correcting intestate succession’s distortions.