Who inherits in Brazil: spouses, partners and the reserved share

After a death, it is unsafe to assume that the spouse inherits everything or that the children simply divide all the assets equally. Family relationships, the matrimonial property regime, the origin of each asset and any will can change both the heirs and their shares.

This guide explains the Brazilian order of succession, the rights of a spouse or partner in a legally recognized stable union, the distinction between marital property and inheritance, and the portion reserved for forced heirs. Applying these rules requires checking the facts and documents of each estate.

What is the order of succession?

Where property is not covered by a valid testamentary disposition, article 1,829 determines who inherits, subject to the reserved share. Priority between classes must be read together with the survivor’s right to inherit alongside certain relatives: children do not invariably exclude a spouse or qualifying partner. The order is:

• First: descendants, such as children and grandchildren, together with the spouse or qualifying partner where the law permits. Degree of kinship and representation determine which descendants inherit.

• Next: ascendants, such as parents and grandparents, if there are no descendants, together with the spouse or qualifying partner. A closer generation excludes a more remote one.

• Then: the surviving spouse or qualifying partner, if there are no descendants or ascendants, subject to the legal conditions for inheritance.

• Finally: collateral relatives up to the fourth degree, including siblings, nieces, nephews, aunts, uncles and cousins, if no prior class is entitled to inherit. Priority and representation rules still apply within this group.

If there are no eligible heirs or effective testamentary dispositions, the estate may enter the statutory unclaimed-estate procedure (herança jacente) and later be declared vacant. Transfer to a public entity requires the applicable procedure and conditions; it is not immediate. Representation may allow the descendants of a child who died before the deceased to take that child’s share. It does not apply in the ascending line; among collateral relatives, it is limited to children of siblings who inherit alongside surviving siblings of the deceased (articles 1,852–1,853). Renouncing an inheritance does not automatically create a right of representation.

Does a stable-union partner inherit like a spouse?

In 2017, the Federal Supreme Court (STF), in Tema 809 (RE 878.694), struck down the different succession regime for stable unions in former article 1,790. It ruled that article 1,829 applies to both marriage and stable unions, including same-sex unions. This does not make every cohabiting relationship legally equivalent to marriage for every purpose.

For an initial estimate of expenses, use our São Paulo probate calculator. It separates tax, notarial and registration estimates, but does not identify heirs or replace a review of their shares and the applicable taxation.

The existence of a legally recognized stable union and its property regime may need to be proved. Lack of formal registration does not automatically exclude a relationship, but a mere assertion is not enough. For older estates, check the temporal limits of Tema 809: within the limits set by the STF, the ruling applies to judicial probate without a final, unappealable distribution judgment and out-of-court distributions for which no public deed had yet been executed. The partner’s protection as a forced heir must be assessed through the relevant case law and the rules that actually entitle that person to inherit, not solely the wording of article 1,845.

When does a spouse inherit alongside descendants?

A spouse does not always inherit alongside descendants. Under article 1,829(I), that form of concurrent inheritance is excluded where the deceased was married under:

• Universal community of property, without overlooking assets that the law excludes from community ownership;

• Mandatory separation of property, imposed by law and distinct from a voluntary separation-of-property arrangement;

• Partial community of property with no separate assets of the deceased.

The survivor’s existing marital property share (meação) is assessed separately; it is not automatically one half under every regime. Under partial community of property, where the deceased left separate assets, STJ case law limits the spouse’s concurrent inheritance to those separate assets; the deceased’s share of community property goes to the descendants. A spouse married under voluntary separation of property may inherit alongside descendants, unlike under mandatory separation. Article 1,832 provides an equal share with each descendant inheriting in their own right. The minimum one-quarter protection requires the survivor to be an ancestor of all the descendants with whom they inherit; the STJ does not apply it where the group includes both shared descendants and descendants of the deceased alone.

Inheritance alongside ascendants follows different rules, without the property-regime exclusions in article 1,829(I). With both of the deceased’s parents, the survivor receives one third; with one parent or more remote ascendants, one half (article 1,837). The relationship’s status at death and any right of habitation must also be checked. A right of habitation is distinct from an inheritance share.

What is the reserved share?

The reserved share (legítima) is the half of the estate protected for forced heirs where they exist, under articles 1,845–1,847. The statute lists descendants, ascendants and the spouse. Case law also protects a qualifying partner, but entitlement depends on the succession rules in the particular case. In REsp 2.061.168/DF, published in February 2026, the STJ upheld the exclusion of a partner under mandatory separation of property from inheriting the reserved share alongside a descendant, while preserving the testamentary provision in her favor. That does not exclude partners from every succession.

Article 1,847 starts with the assets at death, deducts debts and funeral expenses, and adds the value of gifts subject to collation—the adjustment for certain earlier gifts. The survivor’s own marital property is separated first. The disposable portion is not increased by property brought into collation, which is allocated to the reserved portion (article 2,002, sole paragraph). Without forced heirs, testamentary freedom is broader. Disinheritance requires an express statutory ground and the relevant proof and procedure; exclusion for unworthiness has a separate legal regime. Excessive gifts may be reduced according to the amount the donor could dispose of when the gift was made (article 549), alongside the safeguard for the donor’s subsistence in article 548.

Hypothetical example: the Andrade family

Fictional example: suppose Mr. Andrade dies without a will, leaving his wife and two children. They were married under partial community of property and owned R$ 800,000 in community assets acquired for value during the marriage. Assume no separate assets, debts, earlier gifts or other relevant adjustments.

First, the wife retains her R$ 400,000 marital property share; that is not an inheritance. The remaining R$ 400,000 is the deceased’s estate. Under the stated assumptions, the wife does not inherit this portion alongside the children, who receive R$ 200,000 each.

If the deceased had left separate assets, his wife would inherit alongside the children in relation to those assets. A valid will could change the allocation of the disposable portion while respecting the reserved share. This is a hypothetical inheritance calculation and excludes taxes and expenses: check the assumptions before applying any figures to another family.

The most common (and costly) mistakes

• Confusing the marital share with the inheritance. The spouse's marital share is not an inheritance; treating it as such distorts the division of the estate.

• Assuming a spouse always inherits alongside children. Check the property regime and which assets are subject to concurrent inheritance.

• Ignoring a stable-union partner. Investigate and establish the relationship and the rights it creates.

• Skipping a prior class. In intestate succession, collateral relatives cannot displace eligible descendants, ascendants, a spouse or a qualifying partner. Valid testamentary provisions must also be considered.

• Assuming all predeceased relatives can be represented. Representation is limited by line and degree of kinship; a relative’s prior death is not enough.

• Disregarding the forced share. Gifts and wills that infringe the half reserved for the forced heirs may be reduced.

Checklist for identifying heirs

• Identify whether there are descendants, ascendants, a spouse or a domestic partner.

• Check the property regime of the marriage (or of the stable union).

• Separate the marital share (from the regime) from the inheritance (to be divided).

• Investigate possible wills through CENSEC and family records. A negative search does not rule out every form of private will.

• Apply article 1,829 and the rules on concurrent inheritance, representation and the reserved share, taking earlier gifts into account.

• Have a lawyer review uncertain relationships, documents and shares before formalizing the distribution.

Frequently asked questions about who inherits

What is the order of succession?

Article 1,829 of the Brazilian Civil Code gives priority in intestate succession to descendants, then ascendants, then the surviving spouse or qualifying partner, and finally collateral relatives up to the fourth degree. The survivor may also inherit alongside descendants or ascendants under the applicable rules. Wills, representation and legal eligibility must also be considered.

Does a domestic partner in a stable union inherit like a spouse?

Under STF Tema 809, article 1,829 applies to both marriage and legally recognized stable unions, including same-sex unions. The relationship and its circumstances must be established if disputed. For older estates, check the ruling’s temporal limits relating to final judicial distribution judgments and executed out-of-court deeds. Protection as a forced heir requires a review of the applicable succession rules and case law.

Does the spouse always inherit together with the children?

No. Article 1,829(I) excludes concurrent inheritance under universal community, mandatory separation, and partial community without separate assets. Under partial community with separate assets, the survivor inherits alongside descendants only in those separate assets; voluntary separation permits concurrent inheritance. Marital property is assessed separately. The one-quarter minimum requires the survivor to be an ancestor of all the descendants with whom they inherit; it does not apply to a mix of shared descendants and descendants of the deceased alone.

What is the forced share and how much does it represent?

It is the half of the estate protected for forced heirs where they exist under articles 1,845–1,847, not half of the couple’s assets. The survivor’s own marital property is separated, and debts, funeral expenses and collation are considered. Collation does not increase the disposable portion. A stable-union partner’s protection must also be assessed through the applicable succession rules and case law; Tema 809 does not remove that need.

How do I find out who the heirs are in a probate in São Paulo?

Review birth, marriage and death certificates, proof of a stable union, the property regime, asset origins, earlier gifts and wills. CENSEC helps locate testamentary records, but a negative search does not rule out every form of will. These documents support the application of concurrent inheritance, representation and reserved-share rules to determine each person’s entitlement.

When should I look for a lawyer to find out who inherits?

Seek advice where family relationships, property regimes, children from different relationships, wills, earlier gifts or inheritance shares are uncertain. A legal and documentary review can identify rights and procedural options, but cannot guarantee an undisputed distribution or a particular outcome.

Determine the shares before distributing the estate

Identifying heirs requires matching the legal rules to the family’s history and assets. A documentary review can reveal overlooked rights or disagreements, but cannot guarantee that no dispute will arise.

Planning through a will, gifts or an appropriate corporate structure may make the intended succession clearer, provided it respects the reserved share, legal requirements and family needs. Compare the costs and effects: no option universally reduces expense or prevents disputes.

At Falchet e Marques Sociedade de Advogados, on Avenida Paulista in São Paulo, we advise on probate, estate distribution and estate planning, reviewing family relationships, property regimes and testamentary provisions to help determine the heirs and their shares.

Talk to our team on WhatsApp: +55 11 95901-1854 — and understand who the heirs are and how the division of the estate works out in your case.