STJ reinforces the impossibility of validating a donation that disrespects the legitimate inheritance of the heirs

The Third Panel of the Superior Court of Justice (STJ) concluded that the agreement of the heirs does not validate an inofficious donation - which exceeds the legal limits and compromises the legitimate share of the necessary heirs.

The case involved a public deed of division of assets signed by a couple in 1999. However, the division was clearly unequal: the daughter received real estate worth R$39,000, while the son received shares in companies valued at more than R$711,000. The special appeal was filed with the STJ after the court of origin dismissed the declaratory action for nullity of an inofficious donation filed by the heiress.

Justice Nancy Andrighi, the rapporteur of the case, based her decision on the rules of the 1916 Civil Code, in force at the time of the donation. Article 1,776 of this code (equivalent to article 2,018 of the current Civil Code) establishes that the division of inheritance during a lifetime is only valid if it respects the legitimate share of the necessary heirs, which corresponds to half of the donor's assets. In addition, the 1916 Code defines that a donation that exceeds the available portion of the inheritance is considered inofficious and, therefore, null. The rapporteur highlighted that, although the expression in the current Civil Code is different, the understanding of the nullity of an excess donation remains the same.

The STJ decision reinforces the impossibility of validating a donation that harms the legitimate inheritance, even with the agreement of the heirs, making it clear that the will of those involved cannot override the rules of inheritance protection. This position emphasizes the importance of observing the inheritance rules, ensuring that the division of assets respects the legal limits and the rights of the heirs.

Prepared by Fernando Arruda

Email: contencioso.estrategico@mellopimentel.com.br