Legítima ou quota indisponível, incapacidades sucessórias e a velhice | 2016

Author(s) Joana Morais Dantas
Advisor(s) Cristina Dias
Year 2016

Synopsis In the present dissertation the main object of study focuses on reserved succession and the respective legal right, limiting the de cuius´ free disposition of property. The Civil Code currently in force, was redacted and entered into force in 1966, the book of Law of Succession has suffered few amendments since then. Consequently, there are four types of succession: legitimate succession, reserved succession, testamentary succession and contractual succession. We are going to discuss the reserved succession. According to its legal framework, the author of the succession is obliged to reserve a certain part of their patrimony to the reserved heirs designated on article 2157.º of the Civil Code. These heirs which are the spouse, descendants and ascendants are safeguarded by this reserve, in the name of family communion and the continuity of the patrimony preserving the inheritance within the family, conceiving yet this assignment as a benefit given to the heir by their predecessors. However, when the Code was being prepared its initial concept of family, was not suited for today’s social reality. Therefore, certain standards and guiding principles of succession no longer seem to make sense. This social change is reflected in other fields, emerging new phenomena or projecting the existing ones, generating negligent behavior or violence towards seniors, who later on will become the deceased. Based on the analysis of several existing inheritance regimes in other countries, we conclude that, despite the fact that there is no autonomous regime of legitimizes succession, we noticed there is an imposition of the right to reserve part of the inheritance for the benefit of forced or necessary heirs. The combination of all these elements proved to be essential to create an opinion on what is considered no longer appropriate to our current reality, trying to create other paths in order to resolve or mitigate the problematic.

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