Same-sex law is a new field in the legal world. Numerous discussions and interpretations have been and are being held, aiming to resolve conflicts that the law has always omitted.
It is true that the recent judgment by the STF contributed greatly to the elevation and perpetuation of same-sex rights to the level of justice.
Now, the legal problems involving these couples take on a new format. These cases are now discussed with the attention and caution they have always deserved.
Talking about the protection of the law in same-sex relationships does not only reflect gains. Loss will have to be faced countless times.
Loss of even a loved one. Loss of that companion with whom you built a life, dreams and projects.
It is true that death is not a subject that appeals to many. When we touch it, we experience longing and the idea of continuing the path without the presence of someone we loved and who is now no longer here. However, aspects that derive from this death must be dealt with by law, as with death comes what we call succession. At that moment, the assets in the name of the person who dies are transferred to the heirs, who will acquire what is due to them through subsequent sharing, but who now retain the status of heirs.
Acquiring an asset in this condition necessarily requires that the heirs be family members. The order of descent and ancestry defines who will be responsible for the destination of the assets. This order is a very technical subject and I do not intend to tire you by talking about it, but just to clarify how succession in same-sex relationships has been understood.
Creating a heritage or even increasing it through common effort only occurs with the participation of more people. When we talk especially about the union of two people, we refer to the stable union – now it doesn't matter whether it is straight or homosexual, since the STF judgment recognized the same-sex union as a family entity, affirming the right to inheritance between same-sex couples.
I emphasize that the same requirements present in a same-sex union end up justifying the right to inheritance. The law says that a stable union will be subject to the regime of partial community of property. That is, there is automatic adoption of the regime of partial community of assets and, upon termination of this relationship, the assets acquired for consideration during the union will be divided equally between both parties.
Certainly, the creation of a private cohabitation contract allows the couple living in a stable union to establish rules relating to the administration and availability of assets that are different from those relating to the regime of partial community of assets, creating their own patrimonial status, also directing the sharing in the event of the dissolution of the stable union.
Please note, however, that in the succession due to the death of one of the cohabitants, the regime chosen in the contract has no direct impact on the division, except to be aware of the assets acquired at a cost during the period of the stable union, applying in this case the competitive division with the children of both or just the author of the inheritance.
Considering that it is upon the death of one of the partners that many families appear and feel invited to participate in the sharing of assets, it is necessary to search for information and legal guidance.
Many exhausting and humiliating situations could be avoided. But do not fear, only by fighting will everyone have access to a sensible and equal Judiciary.
I know that we could discuss a series of rights for the surviving partner here, for example the right to live in the property owned by the author of the inheritance and which served as the couple's home, but this column is intended for general clarifications.
Count on me in defending rights, it only reaches those who truly believe.
Strong hug!
* Jeferson Gonzaga is a lawyer, registered with OAB/SP 307.936. He works in the legal scenario, developing research and processes, including those focused on same-sex law. Site: www.jefersongonzaga.com.br. MSN: drjeferson@live.com.
