O instituto da legítima no ordenamento jurídico brasileiro: superação ou releitura?

Abstract

This research deals with the forced share institute in Brazilian law, notably, regarding its justification. The institute landed in the national legal system through Lusitanian Law, blending shades of the old Germanic Law and Roman Law. Since then, there have been minor changes in its legal structure, rooted in a fixed and neutral limit, unrelated to the quantity and particularities of each heir. However, the contemporary reality hardly comes close to that lived in Colonial Brazil and in the 19th century. The Civil law has also undergone profound transformations, especially with the transition from the liberal state to the social state and the insertion of the values and principles of the Constitutions over the entire legal system. In fact, the pretense of intangibility of civil law withered away; unveiling, on the other hand, the historicity and relativity of private institutes. Thus, once revealed that there are no valid instruments at all times and places, the question arises whether the forced share institute is still justified in the Brazilian legal system, considering the phenomenon of the constitutionalization of civil law and the contemporary reality that presents itself. This is the main objective that propelled this investigation, having adopted as a methodological strategy the theoretical research of a qualitative nature. After studying the origin and development of the institute, understanding the assumptions and consequences of constitutional civil law, and analyzing the constitutional treatment conferred on the intergenerational transmission of wealth, it was concluded that the forced share institute one presents a functional profile consistent with the project of society of the Constitution of 1988, justifying its permanence in Brazilian law. In this sense, it was concluded that the forced share institute one has the function of realizing the constitutional principle of solidarity in the succession field, noddedly, through the protection of the family members individually considered. However, it could be seen that the structure given to it by the CC/02 doesn’t support its implementation, demanding that substantial legislative changes be promoted, to finally allow the quota destined to the necessary heirs to meet their real needs and reach the people with whom the deceased effectively related familiarly.