The Third Panel of the Superior Court of Justice (STJ) ruled that donations between spouses married under a universal community property regime are impossible.
The panel understood that the proceeds of the donation made between spouses married in universal community property would once again become the common property of both, since it is established by law that the assets acquired before and during the marriage would belong to the couple, with the exception of the situations set out in article 1.668 of the Brazilian Civil Code.
The above decision is based on an action for nullity of a legal transaction (donation), filed on 08.10.2004/XNUMX/XNUMX by the wife's brother who transferred shares in a company to the husband.
The brother stated that his sister was married under a regime of universal community of property, so that the donation of assets to the husband would not have any effect, since the entire assets belong to both spouses.
In the final judgment, the claim was dismissed. The decision was upheld in the appeals court, on the grounds that there was no legal impediment to donations between spouses. The Rio Grande do Sul Court of Justice ruled that the provision that prohibits a spouse from disposing of part of their assets without respecting the right to legitimate inheritance was not applicable to the case.
Furthermore, the local court noted that the donation is a legal transaction carried out during the lifetime of an adult and capable of disposing of his or her assets.
In the Special Appeal, Justice Nancy Andrighi, the case's rapporteur, applied the 1916 Civil Code to the case, due to the fact that the marriage, the donation and the spouse's death occurred during its validity, and recalled that, according to article 262 of the aforementioned Code, the universal community property regime implies the communication of all the spouses' assets, present and future, and their passive debts, with the exception of the incommunicability of the assets expressly mentioned by the code itself.
The Minister highlighted that, although the matter has not been widely debated in the STJ, there is an old precedent from the Second Section, precisely to the effect that donations between spouses under the universal community of property regime are null and void, due to the legal impossibility of their object.
Thus, the rapporteur declared the donation between spouses married under the universal community of property regime null and void, insofar as the hypothetical donation would result in the return of the donated asset to the common assets accumulated by the couple, given the communicability of assets under the regime and the common exercise of co-ownership and joint possession.
Regarding the claim of disrespect for the legitimate share of a necessary heir, the minister accepted the allegation and highlighted that under the Civil Code of 1916, the existence of descendants or ascendants excluded the surviving spouse from the order of hereditary vocation, reserving, however, his/her half share, so that, once the nullity of the donation between spouses married under the regime of universal community of property is recognized, the surviving spouse's half share must be reserved and the other half granted to the necessary heirs.
In her vote, the Minister decided that the spouse should be granted only half of the assets existing at the time of the dissolution of the marital bond, granting the heiress and her subsequent heirs the other half of the assets existing at the time of the donor's death.
