A legítima dos herdeiros necessários como limitação à autonomia privada: repensando o instituto a partir da concepção contemporânea do direito de família.

Abstract

This work was developed with the objective of analyzing and rethinking the legitimacy of the necessary heirs, based on contemporary Family Law, verifying whether this institute is still suitable for the plurality of families enshrined in the constitutional text. It reflected on whether the succession construction provided for in the Civil Code of 2002 really contemplates the current concept of family and the private autonomy of the author of the inheritance. From this new concept of family, It verified whether it is always necessary to restrict and limit the realization of liberalities and the free disposal of the patrimony of the author of the inheritance. Therefore, in the first chapter, a legislative and jurisprudential history of the changes suffered in Family Law was developed, as well as an analysis of the constitutional principles of the dignity of the human person, plurality and equality, in order to understand the concept and the characteristics of the contemporary family. In the second chapter, the concepts of private autonomy and autonomy of the will were analyzed, and how both are developed in Succession Law. In the third and last chapter, the historical evolution of the law in Brazilian law was discussed, understanding its fundamentals. Thus, a comparison was established between the legitimate institute in force at the time of the matrimonial family, and the legitimate one described in the Civil Code of 2002, understanding whether, in view of the new configuration of the family model, the patrimonial reserve is really necessary. An analysis was also carried out of the possibility of the author of the inheritance having full use of his patrimony exercising his autonomy and the analysis of the need for patrimonial restriction before the heir in a situation of economic vulnerability or incapacity. The work was developed through a literature review. It was concluded, then, that there is a need to carry out a revision in the legitimate one, establishing as a rule the free disposition of the patrimony and as an exception to the restriction in the hypothesis of the need for protection of the heir who is in some situation of inequality, such as vulnerability economic or disability.