Property Regime and estate planning

The choice of property regime, whether through marriage or stable union, is one of the most important moments in the life of a couple, however, it is necessary to pay attention to the conscious choice of property regime.

Although this is still a difficult subject for those who are starting life as a couple, it is extremely important that the parties understand the types of property regime and how such a choice impacts on the patrimonial and financial life of the couple.

The property Regime is basically a defined agreement between the spouses regarding what happens and what will happen to each other’s property as a result of the union or marriage. Thus, the choice of property regime consists of the most important strategy of estate planning and succession, and, through it, conferred legal certainty to the rules of administration and exercise of the property rights of the couple.

The Brazilian law provides for the existence of five main property regimes, which are: partial communion Regime, universal communion Regime, final participation Regime in these, total separation of assets Regime and mandatory separation of assets Regime, in addition to the possibility for spouses or partners to stipulate a regime other than those provided by law. It is illustrated with the table of CNB / SP (Colégio Notarial do Brasil)[1]:

The partial communion of property Regime is the most common in Brazil, because the Civil Code provides that, if there is no express choice of the nuptials, such a regime must be in force. In this sense, only the assets acquired in an onerous way in the constancy of the marriage/union will be communicated. In addition, in the event of the death of one of the spouses, there is meação (a term that designates the ideal half of the couple’s common patrimony) of the assets acquired onerously during the Union, in addition to the surviving spouse inheriting the private assets in competition with the descendants.

On the other hand, in the regime of universal communion, all property, whether previous, present or future to the celebration of the marriage, will belong to both spouses, with the exception of property received as a gift and provided that these are recorded with the incommunicability clause. In addition, debts are also communicated, however, in general, debts prior to marriage are excluded from Communion, unless there is proof that such debts have been reversed for the benefit of the couple.

On the other hand, if the couple chooses the total separation regime, no individual assets will communicate with that of the other, so each of the parties manages their own assets and in case of dissolution of the union there will be no common assets to be shared. Furthermore, regardless of the judicial authorization and / or consent of their spouse, both spouses may alienate or encumber the real estate, claim about these assets or rights and provide bail or guarantee. In addition, it is important to mention that in the event of the death of one of the spouses there is no measure, however the surviving spouse will inherit the private assets in competition with the descendants.

The final participation Regime in the aquests is little used, since it is difficult to understand. In this regime, the rules are the same as those of partial communion of property, however, during the constancy of the Union, the spouses may freely dispose of their assets, and only in the event of its dissolution, either by divorce or by the death of one of the parties, each of the spouses will be entitled to half of the assets acquired onerously in the constancy of marriage, in addition to the surviving spouse inheriting the private assets in competition with the descendants, as in the regime of partial communion of property.

The regime of mandatory separation of property is necessary in three cases: when one of the nuptials is over seventy years old, when people marry without observing the suspensive causes and for those who depend, to marry, on judicial supply. In addition, in the event of the death of one of the spouses, there is a measure of the assets acquired onerously during the constancy of the marriage, however, in the event of death, the surviving spouse will not inherit the private assets of the spouse.

In addition, there is the possibility for the parties to create a property regime in any way they see fit. Thus, the couple can mix the already existing regimes or create a new type of regime, and such freedom goes as far as the law does not prohibit.

Finally, it is important to point out that it is possible to change the chosen property regime. In this logic, it is necessary that the request for change occurs judicially, so such a request must be motivated. Therefore, by way of example, it is necessary to present a hypothesis that can justify the change in the property regime:

This is the exercise of entrepreneurial activity of one of the spouses married under the regime of partial communion of property. In this sense, considering that the assets of both spouses can be affected by the property obligations of the company, it is not reasonable for such obligations to affect the assets of the non-entrepreneur spouse. Thus, it is possible to apply for switching to the regime of full separation of property, if there is no enforcement proceedings in progress.

Therefore, it is necessary to exercise caution in the choice of property regime, in order to avoid “surprises” arising from the chosen option, given its patrimonial and succession impacts.

Marina Arista Silva. Lawyer, graduated in law, from Pontifícia Universidade Católica de Campinas (2020), enrolled in the Brazilian Bar Association, São Paulo Section (2022). Postgraduate in civil Procedural Law from Faculdade Damásio De Jesus.

[1] https://cnbsp.org.br/?fbclid=IwAR1oMf5UlXPc3YwxcM-HGAlyzzWHTYiobzW9vJfH0Uq2zudHJFO7k5kPx2s