Dissolution of a company and assessment of the departing partner's interest: how to leave a business and calculate the value of your share?

Companies, like the relationships that give rise to them, can come to an end — at least for one of the partners. One wants to take a different path, another passes away, a third seriously fails to perform their obligations. When this happens, two central questions arise: does the business have to end? And how much is the share of the departing partner worth?

The good news is that, in most cases, the business does not have to end: Brazilian law allows partial dissolution, in which only the relationship with that partner is unwound, and the business continues. The sensitive point is usually the second — the calculation of the share, the so-called assessment of the departing partner's interest (apuração de haveres). In this guide, you will understand the causes of partial dissolution, how the value of the stake is calculated and what the law and the STJ say — with a practical example.

What is the partial dissolution of a company?

Partial dissolution is the departure of a partner without winding up the company: the company is dissolved only with respect to that partner and continues to exist with the remaining ones. It is a direct application of the principle of preservation of the business — the idea that the business, with its jobs and its economic function, should be preserved whenever possible, even when a partner leaves.

It is distinguished from total dissolution, in which the company is wound up (liquidated). The causes of partial dissolution are set out in the Brazilian Civil Code:

• Death of the partner (art. 1,028);

• Voluntary withdrawal (art. 1,029) — the partner's right to leave, in a company of indefinite duration, upon notice given 60 days in advance;

• Judicial exclusion for serious misconduct (art. 1,030);

• Out-of-court exclusion by the majority, when provided for in the articles of association (art. 1,085).

In all of them, the result is the same: the partner (or their heirs) leaves the company and is entitled to receive the value of their share — which brings us to the assessment of the departing partner's interest.

What is the assessment of the departing partner's interest (apuração de haveres)?

The assessment of the departing partner's interest is the calculation of the amount that the departing partner (or their heirs) is entitled to receive for their stake in the company. It is almost always the most sensitive point of the departure — because it determines how much money changes hands.

The rule is in art. 1,031 of the Brazilian Civil Code: the amount is assessed on the basis of the company's net asset position on the date of departure (the "resolution date"), unless the articles of association provide for a different criterion. The Brazilian Code of Civil Procedure (CPC) (art. 606) reinforces and details this: where the articles are silent, the net asset value determined in a special valuation balance sheet is used, valuing the assets and rights and the liabilities, tangible and intangible, at exit value. In other words, one does not look only at the "paper" book value, but at the company's real net worth — including intangibles such as goodwill.

How is the value of the departing partner's stake calculated?

There are two scenarios. If the articles of association set the assessment criterion, it prevails (provided good faith is observed and abuse is barred). For that reason, setting this criterion in the articles of association or in the partners' agreement is so important — it avoids the dispute at the moment of departure.

Where the articles are silent, the special valuation balance sheet applies: the company's real net worth is established on the resolution date, valuing the assets (tangible and intangible, such as goodwill) and the liabilities, at exit value (art. 1,031 of the Civil Code and art. 606 of the CPC). An important point has been settled by the STJ: the criterion is the net-asset one (special valuation balance sheet), with the use of discounted cash flow being rejected — that is, the partner's share is not calculated on the basis of projected future profits, but on current net asset value. The valuation is carried out by a court-appointed expert. This position brings greater objectivity and prevents a partner's departure from being inflated by uncertain future expectations.

Can a partner be excluded from the company?

Yes, by two routes, and it is important to know them:

• Judicial exclusion (art. 1,030): for serious misconduct in performing one's obligations, through a lawsuit brought by the majority of the partners.

• Out-of-court exclusion (art. 1,085): the majority, representing more than half of the capital, may exclude a partner who endangers the continuity of the business through acts of undeniable seriousness — but only if the articles of association provide for this possibility.

Note the condition for out-of-court exclusion: it depends on a provision in the articles of association. Companies that use generic articles of association, without such a clause, may find themselves forced to resort to the courts (slower and more costly) to remove a partner who is harming the business. This is one more reason for the articles of association — and the partners' agreement — to be well drafted from the outset.

Practical example: a partner leaving Sabor & Cia Ltda

Sabor & Cia Ltda is a food company in São Paulo, with three partners. One of them, Marcos, decides to leave to run another project. The company is profitable and has a well-known brand (a valuable intangible). The impasse arises: how much should Marcos receive for his stake?

Sabor & Cia's articles of association were generic and did not set the assessment criterion. Marcos then argued for a value based on the company's expected future profits (discounted cash flow); the remaining partners argued for a lower value. Under the law and the STJ's position, the special valuation balance sheet at net asset value prevails — valuing the real net worth, including goodwill, but without projecting future profits. With the assessment carried out by a court-appointed expert on the date of departure, the fair value of Marcos's share is reached. Had the articles (or a partners' agreement) set the criterion and the form of payment in advance, the departure would have been much simpler — with no dispute over the methodology. The lesson recurs: clear rules beforehand avoid conflicts afterward.

The most common (and costly) mistakes

• Articles of association with no assessment criterion. The silence pushes the discussion of value to the (tense) moment of departure.

• Believing the share is worth future profits. The STJ adopts net asset value (special valuation balance sheet), not discounted cash flow.

• Failing to provide for out-of-court exclusion. Without a clause in the articles of association, removing a harmful partner requires a lawsuit.

• Ignoring intangibles. Goodwill is part of the assessment; disregarding it distorts the value.

• Not formalizing the departure. The departure requires an amendment to the articles of association and a clear settlement of the partner's interest.

Checklist: for a safe partner departure

• Check what the articles of association (and the partners' agreement) provide about departure and assessment.

• Define the cause of the partial dissolution (withdrawal, exclusion, death).

• Establish the base date (resolution date) for the assessment.

• Use the correct criterion of valuation (special valuation balance sheet, where the articles are silent).

• Negotiate the payment terms for the partner's interest (lump sum or in installments).

• Conduct the departure — consensual or judicial — with a Business Law attorney.

Frequently asked questions about dissolution of a company and assessment of the departing partner's interest

What is the partial dissolution of a company?

It is the departure of a partner without winding up the business — the company is dissolved only with respect to that partner and continues to exist with the remaining ones. It is an application of the principle of preservation of the business. The causes are set out in the Brazilian Civil Code: death of the partner (art. 1,028), voluntary withdrawal (art. 1,029), judicial exclusion for serious misconduct (art. 1,030) and out-of-court exclusion by the majority, when provided for in the articles of association (art. 1,085). This differs from total dissolution, in which the company is wound up.

What is the assessment of the departing partner's interest (apuração de haveres)?

It is the calculation of the amount that the departing partner (or their heirs) is entitled to receive for their stake in the company. Under art. 1,031 of the Brazilian Civil Code, this amount is assessed on the basis of the company's net asset position on the date of departure, unless the articles of association provide for a different criterion. The Brazilian Code of Civil Procedure (CPC) (art. 606) reinforces that, where the articles are silent, the net asset value determined in a special valuation balance sheet is used, valuing assets and liabilities, tangible and intangible, at exit value.

How is the value of the departing partner's stake calculated?

When the articles of association set the criterion, it prevails (provided good faith is observed). Where they are silent, the special valuation balance sheet applies: the company's real net worth is established on the resolution date, valuing the assets and rights and the liabilities, including intangibles such as goodwill, at exit value (art. 1,031 of the Civil Code and art. 606 of the CPC). The STJ has settled this net-asset criterion and rejected the use of discounted cash flow (future profits) in the assessment. The valuation is carried out by a court-appointed expert.

Can a partner be excluded from the company?

Yes, by two routes. Judicial exclusion (art. 1,030 of the Brazilian Civil Code) occurs for serious misconduct in performing one's obligations, through a lawsuit brought by the majority of the partners. Out-of-court exclusion (art. 1,085) allows the majority, representing more than half of the capital, to exclude a partner who endangers the continuity of the business through serious acts — but only if the articles of association provide for this possibility. For that reason, including such a clause in the articles of association is important.

How can I leave a company in São Paulo safely?

The ideal approach is to negotiate the departure and the assessment of the departing partner's interest consensually, formalizing it through an amendment to the articles of association and, where applicable, in line with the partners' agreement. When there is no agreement, the partial-dissolution action (arts. 599 to 609 of the CPC) is used, which resolves the relationship and assesses the partner's interest. In São Paulo, a Business Law attorney conducts the negotiation or the lawsuit, handling the valuation criterion and the payment terms to protect both the departing partner and the company.

Do I need a lawyer to dissolve a company or assess a departing partner's interest?

Yes, and it is strongly advisable. Partial dissolution and the assessment of the departing partner's interest involve technical issues — the valuation criterion, the base date, the treatment of intangibles, the payment terms — that directly affect the amount to be received or paid. A Business Law attorney in São Paulo structures the departure (consensual or judicial), protects the client's interests (whether the departing or the remaining partner) and seeks to preserve the continuity of the business.

Leaving (or removing a partner) without destroying the business

Partial dissolution is the expression of a sensible principle: a partner's departure does not have to mean the end of the business. With the right rules, the relationship with that partner is unwound, their share is assessed fairly, and the company carries on — preserving jobs, clients and the brand that has been built.

The key point is the assessment of the departing partner's interest: knowing that, where the articles are silent, what applies is the net asset value (special valuation balance sheet), and not future profits, gives everyone predictability. And having this criterion set in the articles of association or in the partners' agreement turns a potential dispute into a smooth procedure.

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we work in partial dissolution, assessment of the departing partner's interest and Corporate Law — conducting partner departures (consensual or judicial), handling the valuation criterion and the payment terms, and protecting both the departing partner and the continuity of the business. If a partner is going to leave (or needs to be removed), it is worth conducting the process with proper support.

Talk to our team on WhatsApp: +55 11 95901-1854 — and handle the partner's departure securely and at fair value.