STF decides that separation of assets in marriage over 70 years of age is not mandatory

The Federal Supreme Court (STF) defined, this Thursday (1st), that the mandatory regime of separation of assets in marriages and stable unions involving people over 70 years of age can be changed at the will of the parties. Unanimously, the Plenary understood that maintaining the mandatory separation of assets, provided for in the Civil Code, disrespects the right of self-determination of elderly people.

According to the decision, to eliminate the obligation, it is necessary to express this desire through a public deed, signed at a notary’s office. It was also defined that people over this age who are already married or in a stable union can change their property regime, but this requires judicial authorization (in the case of marriage) or a statement in a public deed (in the case of a stable union). In these cases, the change will only produce patrimonial effects for the future.

The president of the STF, minister Luís Roberto Barroso and rapporteur of the action with general repercussion, stated that “the mandatory separation of assets prevents, solely due to age, that people capable of carrying out acts of civil life, that is, in full enjoyment of their mental faculties, define the most appropriate marriage or stable union regime”. He highlighted that discrimination based on age, among others, is expressly prohibited by the Federal Constitution (article 4).

The ministers followed the rapporteur’s understanding and the general repercussion thesis established for Theme 1,236 of general repercussion is as follows:

“In marriages and stable unions involving a person over 70 years of age, the property separation regime provided for in article 1,641, II, of the Civil Code, may be removed by express manifestation of the will of the parties through a public deed.”

Process at the STF

The case analyzed was opened by a woman who entered into a stable union with a man over 70 years old, with whom she remained between 2002 and 2014, until the elderly man’s death. After her husband’s death, the widow filed a lawsuit in common court to claim the unconstitutionality of the property separation regime imposed by law, and obtained, in the first instance, the right to be part of the inventory and enter into the sharing of assets with her children. of the deceased.

The judge’s argument was that imposing separation of assets would violate the principles of human dignity and equality, since a person aged 70 or over would be able to perform acts of civil life and manage their assets.

However, the man’s heirs filed an appeal with the São Paulo State Court, and the TJ-SP modified the decision, applying the separation of assets regime to the stable union. In the court’s understanding, the separation would protect the elderly person from a possible marriage for exclusive property interests, popularly known as a “trunk scam”.

In the STF judgment, the partner asked for the unconstitutionality of article 1,641 of the Civil Code, used in the state court’s decision, to be recognized and for the general regime of partial community of assets to be applied to her stable union, as occurred in the first instance.