Opinion – Marcia Dessen: Stable union, in life and in death

After a few years of relationship, Alberto and Maria decided to formalize their union. Both in their 60s, divorced, with children from previous relationships and considerable wealth, were concerned about preserving their assets for their own descendants.

For this reason, they chose to formalize the stable union through the separation of property regime, in which the patrimony of the partners is not communicated. Thus, in an eventual separation, there would be no sharing: the patrimony of each one would continue to be only their property.

However, they were surprised by the fact that, despite having opted for the separation of property regime, in the succession of property upon the death of one of them, the surviving partner will have the right to the inheritance competing with the children of the deceased.

I spoke with the lawyer Luciana Pantaroto, CFP®, as I always do when it comes to legal aspects. She explains that, until 2017, unlike spouses, partners were not among the necessary heirs and, in some cases, were entitled to lower percentages of the inheritance.

The legitimate part of the inheritance, half of the assets of the inheritance, must be destined to the necessary heirs, the spouse, descendants and ascendants, in the proportions provided for by law, and can only be disinherited in cases provided for by law. The other half of the equity, called available, can be freely allocated.

In 2017, the STF equated partners with spouses for inheritance purposes, including in same-sex unions. Partners are now entitled to the same percentages attributed to spouses; as a result of this decision, the prevailing understanding is that they also became necessary heirs.

So, under current rules, if Alberto dies first, his estate will be shared between his two children and Maria, one third each. As the companion is a necessary heir, it will not be possible to fully exclude her from the succession.

Exploring the succession planning options available, they chose to leave a will stating that the available half of the estate should go only to their children. In practice, the decision reduces by half the percentage of the surviving partner, which goes from 33% to 16% of the inheritance.

They thought about renouncing the inheritance of the partner, but, as it is not allowed to renounce the inheritance of living people, this alternative was discarded. They have informally decided and agreed that they intend to renounce the other’s inheritance at the time of the inventory.

Another interesting case is that of Pedro and Carlos. They had lived together for eight years and had plans to adopt a child. After Carlos’ sudden death, his parents, who did not accept the same-sex relationship, understood that they would be his only heirs.

However, despite not having formalized the stable union, Pedro and Carlos’ relationship fulfilled all the legal requirements to configure it as such: public, continuous and lasting coexistence with the objective of constituting a family.

The stable union was recognized after the death of Carlos and his partner, recognized as his heir, entitled to half of the goods acquired onerously during the union and to a third of Carlos’ private goods; the rest was inherited by Carlos’ parents.

These two fictitious cases illustrate how the succession rules applicable to stable unions are still unknown to a large part of the population. Knowledge and planning can avoid surprises and conflicts at the time of inventory.