THE SUCCESSION OF DESCENDANTS IN COMPETITION WITH THE SURVIVING SPOUSE Fernando Reverendo Vidal Akaoui

Abstract

The purpose of this article is to study the competition between descendants and the surviving spouse in the succession of the assets left by the deceased, in accordance with current Brazilian legislation. The 2002 Civil Code, despite having maintained descendants as the preferred parental class to inherit, established that, under certain conditions, they will compete with the surviving spouse, as a necessary heir. According to art. 1829, item I, of the 2002 Civil Code, the surviving spouse competes with the descendants of the deceased in his/her succession, unless he/she was married under the regime of universal community of property or under the regime of mandatory separation, or, furthermore, if married under the regime of partial community of property, the latter did not leave any private assets. Therefore, when the surviving spouse was married to the deceased under the regime of final participation of the acquired assets or under a specific regime established by means of a prenuptial agreement, we do not believe that he/she should be excluded from competition with the descendants. The doubt, however, persists, as we will see, in relation to the marriage established under the regime of conventional separation and under the regime of partial communion, notwithstanding, in relation to the latter, the aforementioned legal text.