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The Third Panel of the Superior Court of Justice (STJ) has ruled that donations between married spouses under the universal community property regime are not permitted.

The panel considered that the proceeds of the donation made between spouses married under the universal community property regime would again become common to both, since it is established by law that the assets acquired before and during the marriage remain with the couple, with the exception of the situations contemplated in article 1,668 of the Brazilian Civil Code.

The decision refers to an annulment action, filed on October 8th, 2004, by the wife’s brother, who assigned shares of a company to her husband.

The brother argued that his sister was married under the universal community property regime, therefore, the donation of assets to her husband would be ineffective, since the entire net worth belongs to both spouses.

At first instance, the application was dismissed. The decision was upheld by the appellate court, on the grounds that there is no legal impediment for donations between spouses. The Court of Appeals of the State of Rio Grande do Sul considered that the prohibition for the spouse to dispose of part of his assets without respecting the entitlements of necessary heirs is not applicable to the case.

Further, the State Court of Appeals noted that the donation is a legal transaction effected in life by a person who is able to dispose of his or her own assets.

While reviewing the Special Appeal, Reporting Justice Nancy Andrighi, applied the provisions of the Brazilian Civil Code of 1916 to the case, due to the fact that the marriage, donation and death of the spouse occurred during its effectiveness, and remembered that, pursuant to article 262 of the above-mentioned Code, the universal community property regime requires the communication of all of 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 Justice emphasized that, although the matter had not been widely debated in the Superior Court of Justice, there is an old precedent issued by Second Section of the Superior Court of Justice, determining that donations between spouses under the universal community property regime is null, due to the legal impossibility of its object.

Thus, the Reporting Justice deemed the donation between married spouses under the universal community property regime to be null and void, since the hypothetical donation would result in the return of the donated assets to the common net worth put together by he couple, in view of the communicability of assets under the regime and the exercise of common ownership and co-possession.

As for the statement of disrespect of the inheritance of necessary heirs, the Justice accepted the allegation and stressed that under the Brazilian Civil Code of 1916, the existence of descendants or ascendants excluded the surviving spouse from the order of inheritance, except in relation to his/her entitlement for half of the assets due to the condition of spouse, so that, recognizing the nullity of the donation between married spouses under the universal community property regime, the share of the surviving spouse should be reserved and deferred to the necessary heirs of the other half.

The Justice decided to grant the spouse only the share of half the assets existing at the time of the dissolution of marriage, granting the heir and her own heirs, the other half of the assets existing at the time of the death of the donor.