Brazilian Matrimonial Property Law in Inheritance Cases
Under German inheritance law as well, the marital property regime has a significant impact on the surviving spouse’s share of the estate. Under Brazilian law, however, this connection is particularly pronounced. To ensure the estate is settled correctly, it is therefore usually necessary to first determine which marital property regime governed the marriage.
Without addressing this preliminary issue, it is not possible to reliably determine either the share of the estate or the spouse’s claims under matrimonial property law.
The Statutory Matrimonial Property Regime in Brazil
The default regime under Brazilian law is thepartial communityof property (comunhão parcial de bens, Art. 1,640 of the Civil Code). This matrimonial property regime applies automatically if the spouses have not entered into a prenuptial agreement.
As a general rule:
Property acquired before the marriage remains the sole property of the respective spouse.
Property acquired for consideration during the marriage generally belongs jointly to both spouses.
In the event of inheritance, the so-called “meação” —that is, the surviving spouse’s share under matrimonial property law—is determined first. Only the remaining portion is actually part of the estate.
This often leads to misunderstandings in German-Brazilian inheritance cases. For example, if a property acquired during the marriage is registered solely in the name of the deceased spouse, this does not automatically mean, under Brazilian law, that the property is entirely part of the estate.
The Spouse's Status in Inheritance Matters
In addition to the share of the estate, the spouse may also be an heir. Whether this is the case—and to what extent—depends, in turn, on the matrimonial property regime.
Under the community of accrued gains, a spouse often competes with the decedent’s children for the decedent’s separate property—that is, in particular, assets that existed prior to the marriage or were acquired without consideration.
The spouse's exact involvement may therefore differ significantly from the legal situation in Germany.
Brazil's Main Matrimonial Property Regimes
Brazilian law essentially recognizes four types of matrimonial property regimes:
a) Community of Acquired Property (comunhão parcial de bens)
Statutory default rule. In general, assets acquired during the marriage are held in joint ownership.
b) Universal community of property (comunhão universal de bens)
Virtually all of the couple's assets become jointly owned.
c) Separation of property (separação de bens)
The assets remain separate. A distinction must be made between voluntary and legally mandated separation of property, as the consequences under inheritance law may differ.
d) Share in the spoils (participação final nos aquestos)
A less common matrimonial property regime involving the separation of property during the marriage and a subsequent equalization of property gains.
Which law applies to German-Brazilian married couples?
In international cases, there is also the question of which law actually governs the matrimonial property regime.
Pursuant to Article 7, § 4 of the LINDB, the matrimonial property regime is generally governed by the law of the spouses’ first common marital residence.
This can result in:
German matrimonial property law applies to a marriage involving Brazil
conversely, Brazilian matrimonial property law also becomes relevant for spouses living in Germany
Particularly in the case of German-Brazilian estates, determining the legal classification of property is therefore often the first and most crucial step in the estate settlement process.
Choice of Law and Prenuptial Agreement (pacto antenupcial)
In German-Brazilian marriages, the question often arises as to which law applies to the matrimonial property regime. According to Article 7, § 4º of the LINDB, the matrimonial property regime is generally governed by the law of the spouses’ first common marital residence.
Under Brazilian private international law, an express choice of law is not regulated in the same way as, for example, under European international matrimonial property law (see Art. 22 of the EU Matrimonial Property Regulation). A contractual choice of the applicable legal system is therefore not possible. Nevertheless, spouses can exert significant influence over their matrimonial property regime, particularly by entering into a prenuptial agreement (pacto antenupcial).
The "pacto antenupcial " is, in essence, largely equivalent to the German prenuptial agreement and is required, in particular, when the spouses wish to deviate from the statutory matrimonial property regime of the community of accrued gains. In Brazil, as in Germany, this prenuptial agreement must generally be notarized.
Particular caution is advised in international cases. Even if a prenuptial agreement was validly entered into under German law, this does not automatically mean that its effects under matrimonial property law will subsequently be readily recognized in Brazil. Particularly with regard to real estate assets in Brazil, it is therefore important to determine at an early stage whether supplementary provisions or a general adaptation to the Brazilian legal system are necessary.
