Since November, the death of presenter Gugu has raised quite controversial issues that have been discussed in Brazilian Family and Succession Law. Can the existence of a child-raising contract preclude the recognition of a stable union? Can the partner be excluded from the inheritance through a will? Can there be stable simultaneous unions?
As reported by the media, in 2011 Gugu drafted a will recognizing only his three children as his only legitimate heirs, excluding his alleged partner Rose Miriam from his inheritance. Regarding the available part of his assets, which corresponds to 50% of his assets, the presenter divided them between his children and nephews, who are the children of his sister Aparecida Liberato. In addition, he established that his mother would receive for a lifetime the amount of R $ 100 thousand reais per month, as well as the usufruct of the property that resides and that was owned by Gugu. Finally, he appointed his sister Aparecida as an inventor and curator of the assets inherited by the sons of Gugu, explicitly preventing Rose Miriam from managing the assets of her youngest daughters.
The reading of the will in front of Gugu’s family members caused a great deal of family unease. Rose Miriam felt wronged for having been excluded from the inheritance and brought the Brazilian justice to plead her rights, presenting some letters, photos and audios to prove the stable union. In turn, Gugu’s family members claim that Miriam was not his partner and have submitted a child-raising contract between Gugu and Rose Miriam in the past.
On Thursday (7), some news portals published that the chef Thiago Salvático called the Justice so that his stable union with the presenter could also be proven. In the process filed at the 9th Family Court of São Paulo and Successions of the Central Forum of the District of São Paulo, some proofs were attached, such as: travel vouchers, photos, records of conversations in applications, investments administered by the two and even service accounts streaming that Gugu and Thiago shared.
The Brazilian Civil Code says that in order to be recognized as a stable union, there must be a relationship between two people (same sex or opposite sex), public, continuous and long-lasting with the aim of forming a family. According to information reported by the media, Rose Miriam had a relationship with Gugu for 19 years until his death, in addition to being the biological mother of the couple’s three children. In addition, the couple appeared together on several national magazine covers as if they were a family. Thiago claims that he had been with Gugu for more than seven years and that they had been leading a married life for three years.
It so happens that the Justice took into account the contract for the generation of children executed between Gugu and Rose Miriam and established a child support of R $ 100 thousand per month in January of this year, a decision that was overturned in February, changing the amount established to around R $ 42 thousand. And what is this contract?
Although this contract is not regulated in Brazil, being quite common in the United States, many lawyers defend its legal validity, arguing that people have the right and freedom to remove affection from their personal relationships. Therefore, affection remains only in relation to children, with a parental relationship (between parents and children) and not a conjugal relationship (between parents). Once this contract was valid, the stable union could not be recognized.
If Rose Miriam is recognized as Gugu’s companion, another question arises. After all, could she be excluded from inheritance through a will? Regarding the condition of the partner being an heir, the Federal Supreme Court has already decided that a stable union is equivalent to marriage, and there can be no differentiation in relation to the regime of succession of both. Therefore, if the spouse is a necessary heir, as required by law, the partner cannot be excluded from the succession, being also a legitimate heir.
However, art. 1790 of the Civil Code said that the partner had less inheritance rights than the spouse. For example, he would inherit half of what the deceased’s descendants and ascendants inherit. Art. 1829 never saw the companion as a necessary heir. Thus, the majority of the indoctrinators considered that the companion could be excluded from the inheritance through a will.
It happens that in 2017, with the judgment of the Extraordinary Appeal 878.694 / MG, the STF declared art. 1790, and the same succession rules applied to the spouse must be applied to the partner, which are as follows: the patrimony will be divided equally with the descendants (children, grandchildren, great-grandchildren), in the absence of the descendants the patrimony will be shared with the ascendants ( parents, grandparents, great-grandparents) and in the absence of ascendants and descendants the spouse inherits all the assets of the deceased.
In view of this decision of the Supreme Court, the current jurisprudence is in the sense of considering the necessary heir companion.
Supposing that Miriam is considered companion and, therefore, heir to Gugu, in the absence of a coexistence contract establishing the couple’s property regime, the regime that will prevail will be that of partial communion. In other words, Miriam is entitled to half of the assets acquired by Gugu after the beginning of the stable union, which are called the couple’s common heritage. In relation to Gugu’s private assets, which are those acquired before the beginning of the relationship, Miriam will be considered an heir and will have to share them with her children and all those who were included in Gugu’s will. In short, Miriam will be entitled to 50% of common assets and a percentage of private assets, which will be defined by the judge of the case, who will take into account what was stipulated in the will.
Finally, what happens if Thiago Salvático manages to prove his stable union with Gugu? If Rose Miriam is not considered a companion and Thiago is, he will be considered an heir and must share the assets of the estate with the other heirs.
But what if Rose is also considered a mate? Can this other stable union be recognized? The Federal Supreme Court is still judging the possibility of simultaneous stable unions, and has not yet decided the issue. The trial was interrupted. For now there are judges who recognize and others who do not.
As we can see, the case of Gugu is an example of how family relationships are increasingly modern and it is up to Family Law to adapt to this new reality through the jurisprudence of the Courts and, later, the Legislative to regulate them.
For the time being, the Gugu case reflects succession planning that is generating immeasurable family conflict. Many intimate issues of the deceased are coming to the fore. I hope it serves as a lesson for all of us. And that the judiciary will be able to decide the issue in the least painful way possible.
* Debora Ghelman is a lawyer specialized in Humanized Law in the areas of Family and Succession, acting in the mediation of family conflicts based on Game Theory.