Why foreign heirs with novel claims over Brazilian assets may want to consider building their record in the U.S. court first — and bringing the homologation petition to the Superior Tribunal de Justiça (Brazilian Superior Court of Justice) rather than engaging in litigation.
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I. The structural problem
Cross-border estates rarely fail because the law is unclear; they fail because the procedural economics in one of the two jurisdictions punish anything that is not a slam dunk. Consider a recurring fact pattern: a decedent dies domiciled in the United States, leaving four heirs — two in the U.S., two in Brazil — and a Last Will and Testament drafted alongside a revocable living trust. The trust instrument is global in scope. The will, however, was drafted on a U.S. template and contains language limiting its dispositive reach to “U.S. assets.” The U.S. heirs read the documents together as a unified estate plan: the will is a pour-over and a backstop; the trust was meant to capture worldwide assets, including a coastal apartment and a brokerage account in Brazil. The Brazilian heirs disagree.
That disagreement is a textbook will-construction question. In a single-jurisdiction case, the U.S. heirs would file in surrogate’s or probate court and obtain a judicial determination of testator intent. The mismatch is that the assets in dispute sit in Brazil — and so does the forum where partilha (the partition and distribution of the estate) would normally happen.
II. Why Brazil punishes “novel” cases
Two procedural realities make Brazil a hostile forum for any heir whose claim is interesting rather than obvious.
Custas judiciais (court costs) on a percentage basis. In São Paulo, the taxa judiciária (judicial filing fee) is governed by Lei Estadual (State Law) nº 11.608/2003. The statute scales court costs to the value of the cause: roughly 1% on filing and an additional 1% on the sentence (subject to floors and ceilings), for a combined exposure that practitioners commonly describe as “up to 2%.”[^1] On a disputed Brazilian asset pool of, say, USD 5 million, that is a six-figure entry fee paid before any merits hearing — and other states are not always cheaper.
Honorários de sucumbência (loser-pays statutory fee-shifting) on a percentage basis. Under Article 85, §2º of the Código de Processo Civil (Code of Civil Procedure, “CPC”), the losing party pays the winner’s attorney — not the winner’s principal — a fee fixed at 10% to 20% of the valor da condenação (amount of the award), the proveito econômico (economic benefit obtained), or, failing both, the valor atualizado da causa (updated value of the cause).[^2] These are statutory fee-shifting amounts that flow directly to opposing counsel and stack on top of any contractual fee (honorários contratuais) the losing party already owes its own lawyer. For a foreign heir advancing a novel will-construction theory inside a Brazilian inventário, the downside scenario is therefore not just losing the case; it is losing the case and writing a 10–20% check to the other side’s lawyer.
The combined effect — front-loaded costs plus back-loaded fee-shifting — is that Brazilian inventário practice systematically discourages long-shot or first-impression theories, even where the underlying merits would warrant judicial scrutiny.
III. The federal alternative: homologation at the STJ
Since Constitutional Amendment 45/2004, jurisdiction over the homologation of foreign judgments has rested with the Superior Tribunal de Justiça under Article 105, I, “i” of the Federal Constitution. The procedural framework lives in CPC Articles 960–965 and in Articles 216-A through 216-N of the Regimento Interno (Internal Rules) of the STJ.[^3] Three features of that procedure matter for our purposes.
Limited scope of defense. Under CPC Articles 963 and 964 and the corresponding STJ rules, the respondent’s contestation is restricted to the intelligibility of the foreign decision, the absence of formal requirements (final and binding character abroad, proper service, etc.), and offense to Brazilian sovereignty, public order, or human dignity. The STJ does not retry the merits.
Presidential decision unless contested. Under the STJ’s internal regulation as amended by Emenda Regimental (Internal Rules Amendment) 18/2014, the President of the Court grants homologation in uncontested cases; only if a heir presents contestação (formal answer) or impugnação (challenge) is the matter distributed to the Corte Especial (the STJ’s en banc panel).
Federal forum, no state taxa judiciária. Because the proceeding runs at a federal court in Brasília, the percentage-based state filing fees that drive the cost of inventário in São Paulo — and the analogous regimes in other states — simply do not apply.
That third point is the first leg of the cost-arbitrage thesis.
IV. Sucumbência at the STJ: equity, not percentage
The second leg is more recent. In a series of decisions consolidated by the Corte Especial in 2021, the STJ held that honorários de sucumbência in homologation of foreign decisions (“HDE”) must be fixed by equity under Article 85, §8º of the CPC — not by the 10–20% percentage range of §2º.[^4] The Court reasoned that a homologation proceeding is not condemnatory in nature; there is no immediate economic benefit to be measured, and the value of the cause is not an apt base. The judge instead weighs the “species and importance” of the matter and the patrimonial or existential nature of the underlying relationship.
In practice, this means that the worst-case fee-shifting exposure of the foreign heir who loses at the STJ is a small fraction of what the same heir would face inside a Brazilian inventário. Outcomes vary, and equity fees in patrimonial homologations have at times been pegged to the underlying value abroad as one of the criteria, but the structural difference between an equity assessment and a 10–20% statutory band is large enough to reframe the entire cost-benefit calculation for novel claims.
V. The CPC Article 23 ceiling — and how to fit the strategy under it
The objection to this strategy is well known. Article 23, II of the CPC reserves to Brazilian judicial authority — to the exclusion of any other — the inventário and partilha of assets located in Brazil and the confirmation of private wills, regardless of the decedent’s nationality or domicile. Article 23, III adds the same exclusive jurisdiction over actions concerning immovable property in Brazil. The STJ’s Corte Especial has applied these provisions to deny homologation of foreign notarial acts and judgments that purport to allocate Brazilian real estate among heirs.
The strategy survives that objection only because the STJ has drawn a workable distinction. Where the foreign authority ratifies the testator’s expressed will and the parties are in consensus, the STJ has been receptive — homologating foreign decisions even where Brazilian assets are involved. Where the foreign authority is doing partitive work over assets in Brazil that Brazilian law reserves to its own courts, homologation is denied.[^5] The line between those two postures is not always crisp, but it is a line that an experienced cross-border practitioner can manage on the U.S. side of the case.
The implication for our hypothetical is concrete: the U.S. proceeding should be designed to produce a decision that is interpretive — a declaratory determination, on a developed evidentiary record, of what the testator meant by the will-plus-trust structure — rather than partitive. A finding that “the testator’s intent, properly construed against the trust instrument, was to dispose of all assets globally” travels much better through Article 23 than an order purporting to distribute the Brazilian apartment.
VI. The substantive backstop: LINDB Article 10
Sitting underneath all of this is Article 10 of the Lei de Introdução às Normas do Direito Brasileiro (Law of Introduction to the Norms of Brazilian Law, “LINDB”; Decreto-Lei / Decree-Law 4.657/1942). The general rule is that succession is governed by the law of the decedent’s last domicile, regardless of the location or nature of the assets. Paragraph 1 then carves out a one-way protection: where the decedent’s personal law would be less favorable to a Brazilian spouse or descendant than Brazilian law, Brazilian law applies to the assets located in Brazil. Paragraph 2 routes capacity to inherit through the heir’s own domicile.[^6]
For the article’s purposes, two things follow. First, U.S. domiciliary law presumptively governs the construction of the will — which is what the U.S. court will be doing in the construction proceeding. Second, the LINDB §1 floor on legítima (forced share / reserved portion) protections for Brazilian-domiciled heirs is a real limit on how far the homologated U.S. decision can travel; it cannot be used to defeat forced-share entitlements that Brazilian law recognizes and U.S. law does not.
VII. A practical playbook
For practitioners advising U.S.-based heirs in cross-border estates with a colorable will-construction or trust-integration theory, the sequencing looks like this.
First, pursue the construction question in the U.S. forum where the testator was domiciled. Build the evidentiary record around drafting history, the contemporaneous trust instrument, and the testator’s broader estate-planning conduct. Frame the requested relief as declaratory — a determination of testator intent — and avoid language purporting to dispose of foreign-situs assets directly.
Second, secure a final, non-appealable U.S. judgment. STJ homologation requires that the foreign decision be definitive in its country of origin (CPC Art. 963, III).
Third, file the Homologação de Decisão Estrangeira (Homologation of Foreign Decision; the HDE petition referenced above) at the STJ with the apostilled and sworn-translated record. Anticipate that the Brazilian heirs will contest, which moves the matter from the President to the Corte Especial — but that is the forum where the favorable jurisprudence on fees-by-equity and on interpretive-versus-partitive homologation lives.
Fourth, only after the STJ’s positive decision, move to attachment and execution against the Brazilian assets, using the homologated decision as the title.
The cost picture changes accordingly. The percentage-based state taxa judiciária is avoided. The 10–20% sucumbência exposure of CPC Article 85, §2º is replaced by an equity assessment under §8º. And the U.S. heir gains the procedural advantage of having the merits question decided in the forum where the will was drafted, with the Brazilian court asked only to recognize that determination.
VIII. Caveats
The strategy is not free of risk. The most underrated downside is asset flight. The moment the Brazilian co-heirs are served in the homologation proceeding, they have notice that the U.S. heirs intend to reach the Brazilian assets — and the period before the STJ rules is exactly when an account can be moved or a property repositioned. Counsel should pair the homologation filing with whatever protective measures Brazilian procedure permits at the asset-situs level.
The Article 23 ceiling is also softer than the headline rule but harder than the strategy’s most aggressive proponents acknowledge. The interpretive-versus-partitive line is real, but it is fact-sensitive, and the STJ has not been uniformly generous. Decisions that do real distributive work on Brazilian real property will be denied homologation, period.
Finally, equity fees are not always small. Where the patrimonial value at stake is large, the STJ’s equity discretion under §8º can produce fees that are meaningful in absolute terms — they are simply not anchored to the punitive 10–20% band that drives the conventional inventário cost calculation.
IX. The takeaway
The conventional answer for a U.S. heir holding a novel will-construction theory over Brazilian assets has been litigation, absorbing custas, and accepting the 10–20% sucumbência tail risk on a long-shot claim. That answer is, increasingly, the wrong answer. Where the underlying dispute is properly characterized as one of testator intent rather than partilha, the U.S.-then-STJ route can be a serious alternative — federal forum, defense limited to formalities and ordre public, sucumbência fixed by equity, and a Brazilian Supreme Court of record that has shown itself willing to give effect to foreign decisions that ratify testamentary will rather than displace it.
For cross-border practitioners, the implication is that the strategic choice no longer happens at the moment of filing in Brazil. It happens earlier, in the design of the U.S. proceeding — in how the relief is pleaded, how the record is built, and whether the resulting judgment is fit to travel.
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Luciano Oliveira, Esq., LL.M. — attorney licensed in Brazil, California, and Texas. Navas Oliveira Advogados (a.k.a. Oliveira Lawyers).
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[^1]: São Paulo, Lei Estadual nº 11.608/2003, art. 4 (taxa judiciária scaled to *valor da causa* (value of the cause), with the State Treasury’s portion split between filing and sentence stages).[^2]: CPC, art. 85, §2º (sucumbência fixed at 10–20%, payable to opposing counsel as own credit, *ex vi* §14).
[^3]: Constitutional Amendment 45/2004 (transferring homologation jurisdiction from the STF to the STJ); CF art. 105, I, “i”; CPC arts. 960–965; *Regimento Interno do STJ*, arts. 216-A to 216-N (consolidated by Emenda Regimental nº 18/2014).
[^4]: Superior Tribunal de Justiça, Corte Especial, jurisprudence consolidated in 2021 holding that *honorários sucumbenciais* in HDE must be fixed by equity under CPC art. 85, §8º, given the non-condemnatory nature of the proceeding. See, e.g., HDE 1.809-EX and the line of cases reported in the STJ’s official communications.
[^5]: See, *inter alia*, the Corte Especial’s denial of homologation of a foreign notarial act purporting to allocate Brazilian-situs assets, and the parallel line of decisions distinguishing ratification of testamentary will (homologable) from partitive disposition over Brazilian assets (not homologable). CPC art. 23, II–III.
[^6]: LINDB (Decreto-Lei 4.657/1942), art. 10 and §§1–2 (succession governed by *lex domicilii* of the decedent; Brazilian-favorable-law floor for spouse/descendants on Brazilian-situs assets; capacity to inherit governed by heir’s domicile).