The term “marry into money” is used pejoratively to describe situations where there is a clear age and resource difference between partners in a romantic or marital relationship, where the younger partner’s primary interest is suspected to be material benefit rather than a genuine, balanced relationship.
In order to protect the property interests of the elderly, usually the victim of these vested interests, the legislator restricted the autonomy of will of those who married or established a steady union over 70 years of age, establishing the regime of separation of property as mandatory 1.
Although the elderly are not among people with limited capacity, who are unable to exercise their rights on their own 2, without the need for an assistant or representative, it is correct to say that they had their autonomy of will limited by the State.
In February, the constitutionality of this interference in the property affairs of the elderly was reviewed by the Federal Supreme Court, which in the record of the Extraordinary Appeal with Interlocutory Appeal (ARE) No. 1309642 3, with general repercussion (Theme 1.236), established the following thesis:
“IN MARRIAGES AND STEADY UNIONS INVOLVING A PERSON OVER 70 YEARS OF AGE, THE REGIME OF SEPARATION OF PROPERTY PROVIDED FOR IN ARTICLE 1.641, II, OF THE CIVIL CODE, MAY BE REMOVED BY EXPRESS EXPRESSION OF WILL OF THE PARTIES BY MEANS OF A PUBLIC DEED.” (EMPHASIS ADDED)
The collective body defined that the effects of this decision will only affect future cases, so that it will not affect the processes in progress that discuss inheritance or distribution of assets.
In addition, people over 70 years old, currently married or living in a steady union, are authorized to change the property regime through a court decision and public deed, respectively, the effect of which will only be for the future.
By recognizing the autonomy of the will and individual freedom, STF sends a powerful message that each person, regardless of age, deserves respect and dignity in their property relations.
Perhaps here is the main opportunity to deal with succession planning as a preventive legal instrument for disputes between heirs, meeting the will of the person whose assets will be divided.
Some approaches are more common and stand out to guarantee private disposition, namely: a) choice of one or another property regime in marriage or steady union, even an atypical/mixed regime); b) incorporation of holdings; c) donations d) contracting private pensions, life insurance, and investment funds, and e) will etc.
As “masters of their own destiny,” the responsibility and need for succession planning focused on the particularity of each person stands out, in order to avoid problems, which can often erode family relationships and result in endless legal disputes.
Thus, ensuring succession planning that reflects the will of the elderly and protects their assets, as well as the rights of their heirs, is the responsibility of each individual, who has autonomy of will and freedom to make their own choices.
It is concluded that the Supreme Court’s decision did not expose the elderly to scams, on the contrary, it recognized that it is the responsibility of each person, regardless of age, to use the numerous instruments available to ensure their property protection, as well as to guarantee succession planning that reflects their desire.
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1 Civil Code, Articles 1.641, II.
2 Civil Code, Articles 3 and 4
3 STF. EXTRAORDINARY APPEAL WITH INTERLOCUTORY APPEAL. ARE 1309642 RG. Reporting Justice Luís Roberto Barroso. DJ (Court Register): 02/09/2024. Available at: <https://digital.stf.jus.br:443/publico/publicacao/349338>. Accessed on: March 06, 2024.
REFERENCES
BRAZIL. Constitution of the Federative Republic of Brazil, 1988.
_______. Law 10406, dated January 10, 2001 (New Civil Code).
_______. Law 10741, dated October 1, 2003. (Statute of the Elderly).
BRAZIL. Supreme Federal Court. ARE 1309642 RG. Full Court. Reporting Justice Luís Roberto Barroso, 2024.
MACHADO, Patrícia Portela; BRAGA, Felipe Babiski, SÁ, Julia Carla Aquino de e ZANIVAN, Danielle Nunes de Almeida. Planejamento sucessório: proteção do patrimônio e das relações familiares. IBDFAM. Available at:<IBDFAM: Planejamento sucessório: proteção do patrimônio e das relações familiares>. Accessed: February 28, 2024.
Maria Fernandes Novaes Hironaka, G., & Tartuce, F. (2019). Planejamento sucessório: conceito, mecanismos e limitações. Revista Brasileira De Direito Civil, 21 (03), 87. Retrieved from https://rbdcivil.ibdcivil.org.br/rbdc/article/view/466.
STOLLENWERK, Marina Ludovico. Planejamento sucessório patrimonial: análise de casos hipotéticos à luz das questões controversas do direito sucessório. ESCOLA DA MAGISTRATURA DO ESTADO DO RIO DE JANEIRO. Available at: < Planejamento Sucessório Patrimonial (tjrj.jus.br) >. Accessed on: March 06, 2024.
Autor: Daniel Cavalcanti Hayashi • email: daniel.hayashi@ernestoborges.com.br
