By Nicholas Merlone
Maria Berenice Dias, in her work Family’s Law Manual, addresses the succession reflexes, related to the inventory of foreigners.
For the author, everything that refers to affective bonds that extend over time, brings reflexes at the moment when such bonds cease to exist due to the death of one of the couple. In this way, matters arise in the sphere of inheritance law. She explains that the rule of competence is the same. Whether in the national sphere (article 1785 of the Civil Code and article 48 of the Code of Civil Procedure) or in the international sphere (article 10 of the Law of Introduction to Brazilian Law): the succession begins at the place of the last domicile of the deceased.
The Brazilian Constitution (CB) guarantees the right to inheritance (article 5, XXX of the CB), regardless of the place of death of the holder (Brazil or abroad). The inventory and the sharing of assets located in Brazil, in fact, are inventoried here (Law of Introduction of Brazilian Law, article 12 §1o).
Existing assets in Brazil, and its owner was a foreigner, an exception appears. In order to comply with the principle of family protection, the most beneficial law is applied to the spouse, partner and heirs who are Brazilian (CB, article 5, XXXI and Law of Introduction to Brazilian Law, article 10 §1).
That is, if the legislation of the country of the deceased is more beneficial to the heirs, it can be applied by the Brazilian magistrate. The judge may request that the party bring the legal text and prove its validity (article 14 of the Law of Introduction to Brazilian Law). The legal text must be translated into Portuguese by a especific public translator (Code of Civil Procedure, article 192, sole paragraph) or the magistrate appoints a translator (Code of Civil Procedure, article 162, I). After the judge needs to carry out a comparative law study to know which legislation will apply.
DIAS, Maria Berenice. Family rights’ manual. 12th. ed. São Paulo: RT, 2017.