The reform of the Civil Code and the exclusion oh the spouse as a necessary heir: a look from a gender perspective

Abstract

Legitimate succession in the 2002 Civil Code classified the spouse as a necessary heir, recognizing the importance of building the family estate regardless of the financial value that each spouse would add to the family's assets. With the elevation of the spouse to the level of legitimate heir in the first place in the hereditary vocation in competition with descendants, although there was no specific mention of gender, it was possible to repair inequalities and devaluations in relation to women that had occurred over the centuries, since women have always been behind the scenes of the care work that favors whose society appropriates. Furthermore, in the Civil Code of 1916, which preceded the 2002 code, women did not have the right to inherit from their husbands, and could only carry out paid work with his authorization, among other limitations that placed women in a position of inferiority to men. In 2025, even though the right to inheritance had already been consolidated, benefiting women who had always had their domestic work made invisible, a preliminary draft of the New Civil Code was proposed, in which the spouse is no longer a necessary heir. Although there is no mention of gender either, which might lead one to believe that the proposal respects gender equality, women are the ones who will feel the impact of this measure most acutely, which could lead to a scenario of female impoverishment and family impoverishment. With this in mind, this research has sought to describe the history of the spouse's right to inherit, using a gender lens, which is the subject of the first chapter. The second chapter aims to analyse the condition of women in the Brazilian family structure, especially with regard to care work, which is carried out free of charge and invisibly, and how this positively impacts the family while devaluing the role of women in society. The third and final chapter sets out to critically address the preliminary draft of the New Civil Code, demonstrating the aspects that lead us to believe that removing the spouse as a necessary heir is a step backwards and disrespects the rights won by women.