Property regime in the marriages of people seventy years of age or older and changes in the rules of succession

Abstract

According to the definition of the Brazilian Civil Code of 2002, the property regime in marriage is made up of the set of rules that define how the spouses' assets will be divided during the term of the marital partnership or at the end of it, whether through separation, divorce or death. The regime applies to both assets acquired during the term and those acquired before it began. In this sense, this work aimed to analyze the article 1.641, II, of the Civil Code with the decision of the Federal Supreme Court through ARE 1.309.642/SP, Full, Rel. Min. Luís Roberto Barroso, j.  em 1º/02/2024. As a method, a systematic literary review was carried out on the topic, through the analysis of jurisprudence, judgments and doctrines. The objective was to understand the possible impacts of the aforementioned the Federal Supreme Court decision on unions and succession law. Thus, the STF recognized the unconstitutionality of the mandatory application of the legal regime to all married couples aged seventy or over, as it understood that it would violate the principles of human dignity, equality and, in addition, represent an injury to the freedom of property management of the elderly. Thus, the the Federal Supreme Court decision declared that the bride and groom covered there may, through a public deed made at a notary's office, opt for any property regime provided for by law and the rules of the chosen regime will apply to this marriage, including its succession effects. The decision has a modulatory effect, being applicable to future unions, however, there is nothing to prevent those who wish to modify their marriage or union regime from doing so, in compliance with articles 1.821, I, of the of the Brazilian Civil Code.