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In stable union cases, if there is a donation or inheritance, what are the rights of the partners?

Douglas Ribas Jr. And Carlos Alberto Santana * Published at 7:00 am on 12/20/2021

In stable union and marriage, the most frequently adopted property regime in Brazil is the partial communion of property, which means that all assets acquired during a relationship between a co-parent or spouse belong to the couple, excluding goods acquired by one. Parties by donation or inheritance.

This is the most popular property regime, because, frankly, most couples consider it fair, but unless a different governance of the community is explicitly stipulated (such as total isolation or universal community), partial community is the rule under the rule. Law.

This means that regardless of who has contributed financially to the acquisition of a particular property, if the property is partly chosen by the community, the property belongs to both parties in equal proportions, unless the proceeds are donated or inherited.

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Now, as noted above, by law, if the property is acquired by a donation or inheritance, there is no communication with the spouse / partner, so the assets arising from these circumstances only belong to the person who received or determined the donation. Inheritance, good.

If a party accepts a donation or inheritance and uses this amount to purchase the property, how is it?

In the event of the separation of the couple, is the property purchased with a donation or inheritance fund part of the common heritage, or belongs to the person who donated or contributed the inherited values ​​in the purchase of the property?

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In theory, that is, according to the letter of the law, the assets acquired during the marriage or fixed union in the communion administration of goods partially through the value received by the donation or inheritance belong to the individual. Benefited and ended up inheriting or receiving the charity.

But, in practice, there may be (irregularly) communication, even if a certain property is purchased by donation or inheritance, unless certain precautions are adopted.

What precautions should be taken?

First, it must be remembered that those living or married in the administration of partial community property, when accepting a donation or inheritance, intend to use such resources in the purchase of goods, proving their origin. Values ​​intended for the acquisition of property.

It is important to keep receipts, deposit slips, letters, and any and all documents that are capable of displaying the source of financial resources used to acquire the good that enabled the achievement of any and all donations or succession accounts. .

Another basic measure for the protection of the interests of a person who accepts a donation or inheritance and uses the resources for the purchase of property is to confirm, in the case of married or partial communion administration, the purchase and sale of the immovable property, as well as in the real estate registry, that the amount required for the acquisition originates from the donation or inheritance Says.

What if a donation or inheritance is used to buy the property, but not enough to make the acquisition viable?

Sometimes the amount received as a donation or inheritance is fully used by one of the spouses or spouses, however, it does not cover the total amount required to purchase the property from the couple. In these cases, if the couple is separate, what is the situation like?

Each case should be analyzed separately. Everything depends on how much capital is represented by a donation or inheritance to the acquisition of the property.

Let’s move on to practical cases

Case 1: Maria, who married Joao under a partial communion regime, receives a donation of R $ 1,000,000.00, which was fully used in the purchase of a house costing R $ 1,500,000.00.

If Maria and Joao separate, then the couple should share the acquired house with Maria separately at 2/3 (two thirds). The remaining 1/3 (one-third) will fit Maria and Joao in equal parts. In practice, as long as Maria takes the aforementioned precautions, her tendency to keep the house completely for herself is offset by what Joao deserves, that is, about a third. Payment in cash (equivalent to a purchase) is shared in the separation of the unequal division of the couple’s common interest in payment of the Joao amount.

Case 2: Maria, who married Joao under partial communion administration, receives an inheritance of R $ 500,000.00, which was used entirely to buy a house costing R $ 1,500,000.00.

If Maria and Joao separate, then the couple must share the acquired house with Maria separately at a ratio of 1/3 (one-third). The remaining 2/3 (two thirds) fit Maria and Joao in equal parts.

Case 3: Maria, who married Joao in part communal administration, inherits R $ 500,000.00, which was used entirely in the purchase of a house costing R $ 1,500,000.00. The remaining R $ 1,000,000.00 for the purchase of the property was donated by Joao’s family.

If Maria and Joao separate, then the couple should share the acquired house separately with Maria for 1/3 (one-third) and Joao for only 2/3 (two-thirds).

Therefore, it should be noted that if the value of the property is equal to the amount received by one of the parties as a donation or inheritance, there is no doubt as long as necessary steps are taken to ensure the right. Those who have exclusively contributed resources to the purchase of a good, the property belongs only to the party who has made the acquisition of the good. If the donation or inheritance value is not sufficient to pay for the property, there may be several remedies in the case.

We end this article with the prospect of sharing relevant information that can make a difference in the financial lives of women and men who are preparing to face the difficult journey that is the end of a relationship.

Dr. Douglas Ribas Jr.
Carlos Alberto
Dr Carlos Alberto Santana

* Douglas Ribas Jr. He graduated from the Pontifical Catholic University of Sೊo Paulo (PUC-SP) in 1993 and holds a Master’s Degree in Civil Procedure Law from the same institution. He studied lawyers for lawyers at the University of California-Davis. Recognized as one of the most acclaimed attorneys of 2015 and 2019 by the Annual Book Analysis Advocacy, he specializes in litigation and consulting in the areas of civil, consumer, commercial, contract, real estate, labor and corporate law.

Carlos Alberto Santana is a civil legal consultant at Douglas Ribas Advogados Associadios. Doctor and Master in Law from the Autonomous Legal Division of Sೊo Paulo – FADISP / SP. Masters in Civil Procedural Law and Contract Law from the Pontifical Catholic University of Sೊo Paulo – PUC / SP. He is a professor of civil procedure law and civil law. Specialists in real estate law and real estate financing. He writes in the areas of civil procedure law and family law. Lawyers working in the fields of public law and private law.

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