O PACTO ANTENUPCIAL E A CLÁUSULA DE RENÚNCIA À HERANÇA FRENTE AOS DISPOSITIVOS DO CÓDIGO CIVIL BRASILEIRO DE 2002

Abstract

This is the prenuptial pact of an institute that aims to define the rules that will discipline the patrimony of the bride and groom, and must be celebrated before marriage through a public deed. In the absence of major questions about its general and primary purpose, the discussion proposed in the research concerns the (im) possibility of the spouses, using their private autonomy, to foresee in the prenuptial pact, renouncing the hereditary right over possible assets left due to the death of one of them. In cases where the spouses wish to have their renunciation of the future inheritance previously stated in the pact, the analysis must also be made from the provisions of the 2002 Brazilian Civil Code that deal with inheritance law. Despite the doctrinal understanding that such a clause does not violate art. 426 of the Civil Code, which prohibits in our law the so-called corvina pact, referring to a mere individual benefit, the STJ's understanding manifested on some occasions was contrary, expressing an interpretation due to the impossibility of waiving hereditary rights before the condition of heir became effective. , that is, before the death, as the inheritance transaction of a living person would be prohibited. However, part of a select group of national civilists disagree on the way the devices that deal with the matter were interpreted and applied, with the research aiming to contribute to the discussion, which needs to be matured, even so that the applicators and the actual spouses who wish make the pact with the aforementioned clause, has effective legal certainty to do so or not.