Prenuptial agreements and inheritance rights

analysis of the validity of a provision which mutually overr ides the existing right to inherit between marr iage partners

Abstract

This article holds that disinheritance clauses within the prenuptial agreement are legal because it is not a contract, neither a will, neither a refusal of inheritance. Thus, considering its legal constraints laid out by the Brazilian Civil Code, this thesis argues that: (a) the prenuptial agreement is systematically different in comparison to contracts, since it is ruled by an special act that do not prohibit disinheritance clauses (art. 1,639 to 1,657); (b) the rule that protects the necessary heirs bounds only the testator, according to the article 1.789, so it does not bound the spouses on the prenuptial agreement, who freely negotiate it; and (c) the prenuptial agreement is very different from the refusal of inheritance, since the last one is signed for only one party, it does not depend on anyone else, and it does not allow the party to choose its effects (art. 1,808).