A sucessão do conjuge no código civil de 2002

• Ano de defesa: 2007
• Autor(a) principal: Cahale, Claudia Ye Ho Kim
• Orientador(a): Cahali, Francisco José
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: BR
• Palavras-chave em Português: Brasil > [Codigo civil (2002)]; Heranca e sucessao > Brasil; Direito de familia > Brasil
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/7855

This work aims at analyzing the intestate succession right of the spouse under the influence of the Civil Code of 2002 and their new position in the laws of succession. We have made a historic evolution starting by the Ancient Roman Law, going from the Brazilian historic changes, on the Family and Inheritance Law, to the recent codification by the Law 10.407/2002.To better introduce the theme, we have done some general research on the laws of descent and distribution, by thoroughly studying the intestate succession and the lawful successors, whereby all types of heirs and specific legal forms required for the surviving spouse to have their heritage rights recognized, include references of laws which were used in the past. We discourse upon the influence of marriage settlements and spouse position in the Brazilian descent and distribution order the moment they claim the dead person s will with descendants, regardless of the marriage settlement or the competition between the spouse and the ascendants, keeping the former an exclusive heir in third class when there is no living descendant or ascendant. No matter the class the spouse is included (first, second or even third class), the legal requirement is that marriage be legally recognized and the spouses be living together as husband and wife. We also point out the title of spouse, now, as a regular heir, and consequently their right to get the inheritance and the legally limited clause imposed by law. Throughout these studies, we have analysed the exculpatory conditions of the spouse (indignity disinheritance) and the necessity of the collation even if the new legislation does not mention it. Let us not forget that the recent transformations have brought us the necessity to ponders on some questions that reflect on the changes of the concepts and structures on succession Institute. Modest though it may seem, we have attempted to discuss those questions under the influence of the comparative Law, the law projects in procedure statements and legislative proposal alterations. Whichever the position to be studied, the true intentions of legislative members shall not be left unrecognised (the spirit of law). We defend, above all, that the spouse is the only real heir chosen by the author of the inheritance, because the other heirs are not. By providing the spouse with advantages over the inheritance the legislators have benefited the only person we choose to be part of our existence