A concorrência sucessória do cônjuge casado pelo regime da separação convencional de bens à luz do princípio da proteção: uma crítica ao REsp 992.749/MS

Abstract

This research aims at analysing, based on the principle of the outliving spouse, the grounds over which the Superior Tribunal de Justiça based itself in order to judge the REsp 992.749/MS, in which it employed an unorthodox reading of the article 1829, I, of the Código Civil, to settle that spouses, in wedlock unions sorted by the conventional property division regime, are not eligible for succession contests with the offspring of the deceased, nor can she be regarded as the needful heir. The present study employs the deductive method, apart from jurisprudential and bibliographical research. We conclude that the novel understanding settled by the Superior Tribunal de Justiça substantiate the grounds which justify the transfering of property mortis causa, as the consecration of the affective bonds built in a lifetime, as well as the support to the outliving spouse. Therefore, we evince that the surviving consort whose union is ruled by the conventional division regime should be the inherirtor of the deceased.