The unconstitutionality of art. 1,790 of the Civil Code and the possibility of framework as a necessary heir

Abstract

The purpose of this article is to verify the possibility of framing the partner as a necessary heir after the declaration of unconstitutionality of article 1.790 of the Civil Code, which vetoed different treatment of the partner in relation to the spouse with respect to the succession of assets. The method of approach used for this purpose will be the deductive one because it is understood that, from the moment that there was recognition of the unconstitutionality of article 1.790 of the Civil Code, there is, as a consequence, the recognition of the partner as a necessary heir. Through jurisprudential, doctrinal analysis and the prevailing votes in Extraordinary Appeal 878694, which recognized the unconstitutionality of article 1.790 of the CC, it was possible to identify a great tendency to recognize the partner as a necessary heir, on the grounds that failure to recognize would result in violantion of principles of contitutional equality and human dignity. In view of this, it is understood by the extension of the reflexes of the Supreme Court decision to the companions, equating them to the spouses as necessary heirs.