O direito sucessório na união estável : (in) constitucionalidade do tratamento entre companheiros e cônjuges, a partir do atual entendimento do Supremo Tribunal Federal.

Abstract

In the Civil Code there was differential treatment between spouse and unmarried partner, this treatment always brought many doubts to the legal world. This situation changed after the advent of the decision of the Supreme Court that declared such differentiation unconstitutional. The present work, therefore, has the objective of presenting the sucession rights of the unmarried partner and comparing them to the spouse, thus showing the regression in relation to that provided for in the Federal Constitution of 1988, but also the evolution of this right brought by the Supreme Court. From this, there is the study of general concepts and historical aspects of law of sucession, bringing a compilation of the old customs and their improvement, study of the laws of stable union in Brazil, characteristics of stable union, and their differences in marriage, and characteristics of sucession law, and also the differences between stable union and marriage and failure (or not) in the comparison of institutes. Faced with this discussion, there are many points to be clarified, and the basis of this debate is the judgment of the Extraordinary Appeal (646.721/RS) that deals with the unconstitutionality of the distinction of succession between spouse and unmarried partner. Therefore the present monograph, using the inductive method and doctrinal and jurisprudential research, analyzed whether there is discrimination in the treatment between unmarried partners and spouses in relation to inheritance rights and whether the treatment given to the unmarried partner by article 1,790 of the Civil Code is constitutional. In this way it can conclude that there is no hierarchy between the familiar entities, both are deserving of the same rights, being considered unconstitutional any and all norm that violates the principle of equality.