Proposal for a functional reinterpretation of the legal heirs’ rights in the Brazilian law

Abstract

The article proposes a reinterpretation of the legal heirs’ rights, investigating its function in contemporary law and the possibilities of changing the formalist regulation of Brazilian Inheritance law. Once the conception of the family as a sacred institution – in which legal protection was granted independently and even against the interests of its members – has been overcome, private law turns itself to the promotion of the dignity of the familiar community members. With this change of perspective, it is necessary to challenge the ratio of the current structure of heirs‑at‑law, given that legal heirs must be defined by their need of the property, not only by their abstract familiar status. The legislative reform proposed in this study does not target the extinction of the legal heirs’ rights, nor of the inheritance law. Distancing from scholars who advocate the will as a supreme value – expression of the nineteenth century’s individualism –, and from those who defend that the inheritance should have public destination by law – which is in opposition to the constitutional rules –, the legal share of the heirs must be seen as an instrument for the protection of vulnerabilities, detaching itself from the formalist structure focused on the attribution of goods by obsolete criteria.