OAB-CE 6963

Rules Applicable to Foreign Property in Cases of Inventories and Succession Post-Death

RULES APPLICABLE TO FOREIGN PROPERTY IN CASE OF INVESTORIES AND SUCCESSION POST-DEATH

The connection rule used in the Brazilian law of succession refers to the last domicile of the deceased, whatever the nature and location of the property (art. 10 of the LINDB). In cases of inheritance disputes Brazil applies the principle of absolute competence and the plurality of forums succession in cases of property left by the foreigner in more than one country. The rules of succession occurs in two stages, the first being determining jurisdiction (art. 89 of the CPC II), and the second, where the law is decided. Once competence is established, which is usually where the property is,  the law determines the applicable legislation and testamentary succession, namely, that of the last domicile of the deceased, regardless of nationality (Article 10 of LINDB).

 The exception is the rule contained in § 1 of the same article.

It provides that when a succession of foreign assets located in Brazil will be governed by Brazilian law it will be for the benefit of the Brazilian spouse or the children, or who represents them, whenever they are not more favorable to the deceased’s personal law. Therefore, in the event of the death of foreigner with movable and immovable property in Brazil two things can happen: first, in case you do not have children or spouse Brazilians, the succession which is due to be open here in Brazil, will follow the legislation of the last domicile of the deceased. In the second, in cases where there is a child or spouse, the Brazilian succession will follow the Brazilian standards, unless the foreign law is more beneficial.

We also point out two relevant parts of the law of succession, which are important differences, the ability to succeed and as an heir. In § 2 of Article 10 of the Law of Introduction Rules of Brazilian law, the ability or inability of the heir to receive the inheritance depends on the law of his domicile. Already the status as heir has to do with the order of the hereditary vocation, i.e. belong to person who introduces himself as heir to one of the categories calls for the law of succession, which in Brazil, obeys the law where the deceased was domiciled.

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