Who inherits? The order of succession, the spouse's concurrent share and the forced share explained

“Who gets the assets?” is the first question of almost every family after a death — and the answer is not always what common sense imagines. Many people think that “the spouse inherits everything”, or that “the children split equally and the widow(er) is left out”. The reality is more subtle: the law has an order for calling the heirs, and the property regime of the marriage changes the outcome.

In this guide, we explain who inherits under the Brazilian Civil Code: the order of succession, how the spouse (and the domestic partner) fits into this picture, the role of the property regime and what the forced share is. With this, you will understand how an inheritance is really divided — and why it is worth checking each case.

What is the order of succession?

When there is no will (or for the part it does not allocate), the law calls the heirs in a sequence of classes, set out in art. 1.829 of the Brazilian Civil Code. The rule is simple: a class only inherits if there is no one in the previous one. The order is:

• 1st — Descendants (children; in their absence, grandchildren, and so on), concurrently with the surviving spouse, according to the property regime.

• 2nd — Ascendants (parents; in their absence, grandparents), also concurrently with the spouse.

• 3rd — Surviving spouse, alone, if there are no descendants or ascendants.

• 4th — Collateral relatives up to the 4th degree (siblings, uncles and aunts, nephews and nieces, and cousins), if there are none of the previous ones.

In the absence of all of these, the inheritance is declared dormant and, ultimately, vacant, passing to the public authorities. Among descendants, the rule of representation applies: if a child has already died, their children (the deceased's grandchildren) inherit in their place.

Does the domestic partner inherit like a spouse?

Yes — and this is one of the most important changes in recent succession law. For a long time, the domestic partner in a stable union had lesser inheritance rights than the spouse (under the former art. 1.790). In 2017, the Federal Supreme Court (Theme 809, RE 878.694) declared this difference unconstitutional and ruled that the stable union is subject to the same regime as marriage (art. 1.829).

In practice, the surviving domestic partner today occupies the same position as the spouse in the order of succession — including in same-sex unions. There is still scholarly discussion on some details (such as the exact scope of “forced heir”), but the central point is settled: spouse and domestic partner inherit under the same rules. It is worth remembering that the stable union, when not formalized, may need to be proven in the probate.

Does the spouse always inherit together with the children? The role of the property regime

Here is the part that surprises the most. The spouse inherits concurrently with the descendants (that is, inherits together with the children) — but not always. Under art. 1.829, I, there is no concurrent share when the deceased was married under:

• Universal community of property (the spouse is already entitled to the marital share of almost everything);

• Mandatory separation of property (the so-called statutory separation);

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

In these cases, the spouse keeps their marital share (the half that already belonged to them under the regime), but does not inherit concurrently with the children. By contrast, under the partial community of property with separate assets of the deceased, and under the conventional separation of property (according to the STJ), the spouse does inherit concurrently. When inheriting concurrently with descendants, the spouse receives a share equal to that of the children, no less than a quarter of the inheritance if they are an ascendant of the children (art. 1.832). This is why distinguishing the marital share from the inheritance and looking at the property regime is essential — two similar families can have quite different divisions of the estate.

What is the forced share?

There is a limit that protects the close family: the forced share (legítima). It is the half of the estate that the law necessarily reserves for the forced heirs — descendants, ascendants and spouse (and the domestic partner, treated as equivalent by the Federal Supreme Court) —, under arts. 1.845 and 1.846 of the Brazilian Civil Code.

This means that, where there are forced heirs, a person may freely dispose of — by will or gift — only the other half, the disposable portion. The forced share cannot be set aside by will (except in the legal cases of disinheritance, which require cause and a specific action). It is the forced share that prevents, for example, someone from disinheriting a child without legal cause or giving the entire estate to a third party to the detriment of the family.

Practical example: how the Andrade family's inheritance works out

Mr. Andrade passed away without a will, leaving his wife (to whom he was married under the partial community of property, with no separate assets) and two children. The couple's estate was R$ 800,000, all acquired during the marriage.

First, the marital share is separated: half (R$ 400,000) already belongs to the wife under the regime — it is not an inheritance. The other half (R$ 400,000) is the inheritance to be divided. Because the regime is partial community of property with no separate assets, the wife does not inherit concurrently: the inheritance goes only to the two children, R$ 200,000 each. The result: the wife keeps R$ 400,000 (marital share) and each child R$ 200,000.

Note how the regime changes everything: had there been separate assets of the deceased, the wife would inherit concurrently with the children over those assets. And had there been a will, the allocation of the disposable portion (half of the inheritance) could be different. For this reason, there is no single answer to “who inherits” — it depends on the regime, the family and the existence of a will.

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.

• Thinking the spouse always inherits concurrently with the children. It depends on the property regime — in several cases, they do not.

• Ignoring the domestic partner. After the Federal Supreme Court, the stable union inherits like marriage; leaving the domestic partner out is a mistake.

• Skipping a class. Collateral relatives only inherit if there are no descendants, ascendants or spouse/domestic partner.

• Forgetting representation. The children of an heir who has already died inherit in their place.

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

Checklist: to understand who inherits in a case

• 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).

• Check for a will (search with the CENSEC Center).

• Apply the order of art. 1.829 and the rules of concurrent share and representation.

• In case of doubt, consult a lawyer before dividing the estate.

Frequently asked questions about who inherits

What is the order of succession?

It is the order in which the law calls people to inherit when there is no will (or for whatever remains beyond it). It is set out in art. 1.829 of the Brazilian Civil Code and follows this sequence: first the descendants (children, grandchildren), concurrently with the spouse according to the property regime; in their absence, the ascendants (parents, grandparents), also concurrently with the spouse; then the spouse alone; and, lastly, the collateral relatives up to the fourth degree (siblings, uncles and aunts, nephews and nieces, and cousins). A class only inherits if there is no one in the previous one.

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

Yes. In 2017, the Federal Supreme Court (Theme 809, RE 878.694) declared unconstitutional the rule that granted the domestic partner lesser inheritance rights, ruling that the stable union is subject to the same regime as marriage (art. 1.829 of the Brazilian Civil Code). In practice, the surviving domestic partner today occupies the same position as the spouse in the order of succession. This applies even to same-sex unions. The recognition of the stable union, however, may need to be proven.

Does the spouse always inherit together with the children?

Not always — it depends on the property regime. Under art. 1.829, I, the spouse inherits concurrently with the descendants, unless they were married under the universal community of property, under the mandatory separation of property, or under the partial community of property where the deceased left no separate assets. In other words, in many partial community of property marriages with no separate assets, the spouse keeps the marital share but does not inherit concurrently with the children. When inheriting concurrently, the spouse receives a share equal to that of the children, no less than a quarter of the inheritance if they are an ascendant of the children (art. 1.832).

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

The forced share is the half of the estate that the law necessarily reserves for the forced heirs — descendants, ascendants and spouse (and the domestic partner, treated as equivalent by the Federal Supreme Court), under arts. 1.845 and 1.846 of the Brazilian Civil Code. It means that, where there are such heirs, a person may freely dispose of (by will or gift) only the other half, the disposable portion. The forced share protects the close family and cannot be set aside by will, except in the legal cases of disinheritance.

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

The heirs are defined by law (art. 1.829) based on the deceased's family situation: whether there were descendants, ascendants, a spouse or a domestic partner, and what the property regime was. In the probate, this is proven by documents — birth and marriage certificates, proof of the stable union, etc. In São Paulo, the existence of a will is also checked (through the CENSEC Center), which may change the allocation of the disposable portion. A lawyer organizes this analysis and correctly identifies who inherits and in what proportion.

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

Whenever there is doubt about who the heirs are or about the proportions — which is very common when there is a spouse or domestic partner inheriting concurrently with children, second marriages, children from different relationships, or varied property regimes. Getting who inherits and how much wrong can lead to unfair divisions of the estate and to litigation. A succession lawyer correctly applies the order of succession to your specific case, taking into account the property regime and any will, and conducts the probate securely.

Knowing who inherits prevents unfair divisions and quarrels

The question “who inherits?” seems simple, but the answer involves the legal order, the property regime, the position of the spouse and the domestic partner and the limit of the forced share. Getting this calculation wrong — by guesswork or by copying the neighbor's case — leads to unfair divisions of the estate and, often, to litigation that splits families.

The good news is that, by correctly applying the rules to the specific case, it is possible to determine with certainty who inherits and in what proportion — and, with planning (a will, gifts, a holding company), even to organize that transfer during life, reducing conflict and cost.

At Falchet e Marques Sociedade de Advogados, a firm in São Paulo (Av. Paulista), we work in probate, division of the estate and estate planning — correctly identifying the heirs, applying the order of succession and the property regime, and conducting the division of the estate in a fair and secure way. If there is doubt about who inherits in your case, it is worth clarifying before dividing the estate.

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.