THE DIFFERENCES OF CIVIL UNION AND MATRIMONY ON INHERITANCE SUCCESSION ARE CONSTITUTIONAL? THE POSITION OF DOCTRINE AND COURTS.

Abstract

This paper started from a very often question of family and succession practioners in Brazil: “Are the differences of civil union and matrimony on inheritance succession constitutional?”. Both doctrine and jurisprudence have faced this issue since the Civil Code of 2002 was promulgated. There have been different judicial answers to the same problem, so this fact is the lack of a minimum sense of justice that should prevail in the Nation. It concludes that there is no consonance between the discriminatory criteria elected by the legislator of article 1790 of Civil Code and the equalitarian and dignifying interests of the Federal Constitution. This assertion was based on the analysis of the juridical content of the principle of equality, in two focus. Firstly it aimed to find the criteria adopted by legislator to differentiate matrimony and civil union, claimed to be the reason of diversity of norms regarding the position of succession of the surviving spouse and the surviving common-law partner. It found that the criteria elected (solemn form only for matrimony) is not enough to justify the legislative distinction. Secondly the research aimed to find if there could be a logical correspondence of the criteria chosen (solemn form of matrimony) and the distinction of marriage and civil union, and this could not be found. In sum, it assessed that there is no correspondence of the discrimination with the interested enshrined by Constitution. Therefore, this essay concludes that the article 1790 is inconstitutional.