Family estrangement does not, by itself, remove someone’s inheritance rights under Brazilian law. Even after years without contact, a legally recognized heir may still inherit.
Nowadays, there are many different family structures around the world. Relationships between family members are not always close or harmonious.
Some people may go years without speaking to their parents or other family members. They may have lost contact after moving to another city or country. Others simply grew apart over time.
But to what extent can a lack of contact or a difficult family relationship affect someone’s inheritance rights under Brazilian law?
It is natural for questions like these to arise. This is especially true for people who live abroad or are familiar with other legal systems.
In Brazil, the law establishes specific rules regarding who is entitled to inherit. It also determines under what circumstances those rights may be lost.
Can Family Estrangement Affect Your Inheritance Rights?
A lack of contact between family members does not result in the loss of inheritance rights, even after many years.
For example, consider a child who has not spoken to their father in 20 years. Another example is someone who moved abroad and completely lost contact with their family. A person may also have a difficult relationship with their parents.
None of these situations, on their own, is sufficient to deprive a legally recognized heir of their inheritance rights under Brazilian law.
Similarly, living outside Brazil does not prevent someone from being entitled to an inheritance left by a Brazilian family member.
This remains true even if the heir was not immediately aware of the death or the existence of probate proceedings. It is possible to request participation in the probate process and claim the inheritance rights to which they are entitled, even while living abroad.
Inheritance rights do not necessarily depend on having a close relationship with family members. Instead, they depend on the rules established by law.
However, although forced heirs receive special protection under Brazilian law, this protection is not absolute.
There are specific circumstances in which even a forced heir may be excluded from inheritance.
How Does Inheritance Work in Brazil?
In Brazil, inheritance arises upon a person’s death. It consists of the assets, rights, and obligations left behind by the deceased.
Succession only occurs after death. This means that there is no inheritance from a living person.
Brazilian law recognizes a principle known as saisine. Under this principle, inheritance is automatically transferred to the heirs at the moment of death. However, this does not mean that the assets can be immediately sold or transferred.
For the assets to be divided among the heirs, a probate proceeding is necessary.
Its main purpose is to identify the assets, rights, and debts left by the deceased. The probate process also identifies the heirs and determines how the inheritance will be divided among them.
During this process, the estate is administered by a person known as the inventariante (estate administrator). This person is responsible for managing the assets and representing the estate throughout the proceedings.
In addition, Brazilian law provides special protection for certain family members, known as forced heirs. When forced heirs exist, a portion of the inheritance is protected by law.
But who are the forced heirs?
Forced heirs include descendants, ascendants, and the spouse, as established by Article 1,845 of the Brazilian Civil Code.
It is important to mention that partners in a legally recognized stable union (união estável) also have inheritance rights. They are treated equally to spouses regarding the application of succession rules.
To protect these family members, Brazilian law requires that half of the inheritance be reserved for them. This portion corresponds to 50% of the inheritance and is known as the legÃtima (reserved portion).
The other half is known as the disposable portion. It may be left to other individuals through a will, provided that the rights of forced heirs are respected.
How the inheritance is divided among the heirs depends on Brazilian law and the circumstances of each case.
Under What Circumstances Can Someone Lose Their Inheritance Rights in Brazil?
Brazilian law provides special protection for certain heirs. However, it also limits that protection through specific legal provisions.
There are two situations in which an heir may lose their inheritance rights: exclusion due to unworthiness (indignidade) or disinheritance (deserdação).
Exclusion Due to Unworthiness
Exclusion due to unworthiness occurs when an heir commits serious acts specified under Brazilian law. These acts may be directed against the deceased or other individuals protected by law.
Article 1,814 of the Brazilian Civil Code establishes that an heir may be excluded from inheritance when, for example, they:
- Participate in the intentional killing or attempted killing of the deceased, their spouse, partner, ascendant, or descendant;
- Falsely accuse the deceased in judicial proceedings, under the circumstances provided by law, or commit crimes against the honor or reputation of the deceased or their spouse or partner;
- Use violence or fraudulent means to prevent the deceased from freely disposing of their assets through a will.
In these cases, exclusion due to unworthiness is based on a legal provision. It does not require any prior expression of intent by the deceased.
Article 1,815-A of the Brazilian Civil Code addresses the consequences of a final criminal conviction for acts described in Article 1,814.
Under this provision, such a conviction results in the immediate exclusion of the heir. A separate civil action to declare the heir unworthy is not required.
In other situations, a civil action is generally necessary for an heir to be declared unworthy and excluded from inheritance.
A real-life example that received widespread attention in Brazil is the case of Suzane von Richthofen. She was excluded from her parents’ inheritance after being convicted of participating in their murders.
In this case, the court recognized her unworthiness to inherit the assets left by her parents.
Disinheritance
In addition to exclusion due to unworthiness, Brazilian law also provides for the possibility of disinheritance.
Unlike exclusion due to unworthiness, disinheritance results from the wishes of the deceased.
During their lifetime, a person may express through a will the intention to exclude a forced heir from inheritance.
However, this decision must be based on one of the grounds established in Articles 1,962 and 1,963 of the Brazilian Civil Code.
These grounds include:
- Physical assault;
- Serious insult;
- Illicit relationships with certain family members by marriage, as provided by law;
- Abandonment of ascendants suffering from mental illness or serious disease, or descendants with mental disabilities or serious disease, under the circumstances established by law.
In other words, the person leaving the inheritance cannot simply express a desire to exclude an heir.
They must also expressly state the grounds for disinheritance. After their death, the truth of those grounds must be proven in court.
Therefore, Brazilian law protects certain heirs but also establishes situations in which their inheritance rights may be lost.
Both exclusion due to unworthiness and disinheritance require legally recognized grounds. The simple wish to exclude someone from inheritance is not sufficient.
Other Situations in Which an Heir May Not Receive an Inheritance
In addition to exclusion due to unworthiness and disinheritance, other circumstances may prevent an heir from receiving an inheritance.
Although Brazilian law provides protection for heirs, it also recognizes the right to renounce an inheritance.
An heir may renounce their share if they do not wish to receive it. In this case, the renunciation must be made expressly, through a public deed or a formal declaration before the court.
Another situation may arise when the deceased leaves behind debts that compromise the entire estate.
Before the inheritance is divided, the deceased’s debts and obligations must be taken into account.
If those debts equal or exceed the estate’s value, there may be no assets left to distribute among the heirs.
The treatment of these obligations is also addressed in our guide to creditors’ claims in Brazil.
Conclusion
In general, family estrangement or a lack of contact does not result in the loss of inheritance rights in Brazil. This remains true even when family members have been apart for many years.
However, inheritance rights are not absolute. Brazilian law establishes specific circumstances in which an heir may be excluded from inheritance.
Understanding these rights is important for people who have lived abroad for many years and are unfamiliar with Brazilian inheritance laws.
It is also important for those seeking to exclude an heir due to unworthiness. The same applies to individuals who wish to disinherit one of their heirs through a will.
Seeking assistance from an attorney specializing in Brazilian inheritance law can be essential.
An attorney can help explain the legal requirements, identify the rights involved, and determine the most appropriate procedure for you and your family.