Donation with usufruct
Transfer the asset in life, keep the use and income until death — the succession design that settles the inheritance without probate. In person at Avenida Paulista or remotely.
5,0 · 18 Google reviewsThe donation with reserved usufruct transfers bare ownership to the donee in life, while the donor keeps the use and income — living in the property or collecting the rent — until death (CC, arts. 538 and 1.390). On the donor's death, full ownership consolidates automatically — without going through probate. It is the classic instrument of Brazilian succession planning.
What the donation with usufruct accomplishes.
- Transfer of bare ownershipThe donee receives the title now; the donor retains usufruct — use and income — for life.
- No probate for donated assetsOn the donor's death, full ownership consolidates automatically — the asset does not enter the estate.
- Inalienability and unseizability clausesProtections that prevent the donee from selling, mortgaging or having the asset seized for their own debts.
- Equalization of heirsThe donation counts toward the donee's legitimate share — a donee who is a forced heir brings it into collation unless exempted.
- Advancement of the legitimate shareThe donation uses the reserved portion — it anticipates the heir's inheritance, not the disposable part.
- ITCMD and tax effectsThe donation tax and its rate vary by state — the transfer is taxed now, the consolidation is not.
- Combination with a willThe donation covers the legitimate share; the will governs the disposable portion — the two coordinate. See succession law.
Transfer now, keep the use — the asset never enters probate.
The mechanics split ownership: the donee becomes the bare owner — future full owner — while the donor keeps usufruct: the right to use the property, live in it or collect the rent. Both register at the property registry; the division is automatic.
The decisive effect is on the donor's death: the usufruct extinguishes and full ownership consolidates automatically in the donee. The asset does not enter the estate and does not pass through probate — it simply completes the transfer already made.
The protective clauses matter: inalienability prevents the donee from selling or mortgaging during the donor's life; unseizability protects the asset from the donee's creditors; reversion returns the asset to the donor if the donee dies first. Together they prevent the donated asset from being lost.
The succession constraint: the donation counts toward the legitimate share — the portion reserved for forced heirs — unless made as an advancement of inheritance with collation exemption. The legitimate share cannot be reduced by donation; the disposable portion is what the donor freely distributes.
How we run the case.
- Map the estate and the heirsWhat will be donated, to whom — and whether the legitimate share is respected.
- Design the clausesUsufruct reservation, inalienability, unseizability, reversion — the protections that fit.
- Execute the deedPublic deed at the notary — ITCMD assessed and paid, the clauses recorded.
- Register and annotateProperty-registry registration for real estate — the usufruct is annotated on the title.
What to bring to the first conversation.
Documents that speed up the review
The asset titles and the heirs' documents define the donation's structure.
- Property titles and valuations
- Donor's and donees' ID documents
- Marriage certificate and property regime
- Heirs' list and their relationships
- ITCMD assessment and payment
- Corporate documents, if a business is involved
- Existing will or prior donations
- Proof of the donor's residence
Case review and a written proposal before any step is taken. Informational content under Brazilian Bar Association Rule 205/2021 — it does not replace an assessment of your case.
What clients say on Google.
“From the very start I was looked after exceptionally. The team is attentive and explains every step.”
Amanda M. · Google“Excellent, highly qualified professionals. I highlight the professionalism, the service and the honesty.”
Rita G. · Google“Very polite, patient, always with precise, accurate answers. I recommend them with no reservations!”
Thais T. · GoogleTranslations of real client reviews published on Google.
Who leads this area.
Founding partner at Falchet e Marques (OAB/SP 428.777). Postgraduate in Real Estate Law (PUC/SP) and Succession Law (PUC-Campinas), she leads the real estate, family and probate practice. Straight to the point, no legalese.
Meet Letícia MarquesCommon questions.
What is usufruct in a donation?
The donor transfers bare ownership to the donee but keeps usufruct — the right to use the asset, live in it or collect rent — for life. On death, full ownership consolidates automatically in the donee.
Does the donated asset go through probate?
No — the transfer is already made. On the donor's death, usufruct extinguishes and full ownership consolidates automatically; the asset never enters the estate.
Can the donee sell the asset while the donor lives?
Not if the donation has an inalienability clause — standard in this design. The donee cannot sell, mortgage or encumber during the donor's life.
Does the donation affect the other heirs' share?
Yes — the donation counts toward the donee's legitimate share and is brought into collation unless exempted. The legitimate share cannot be reduced; only the disposable portion is freely distributable.
Is the donation taxed?
Yes — ITCMD is paid at the transfer (rate varies by state). The consolidation of full ownership at the donor's death is not taxed again.
What happens if the donee dies first?
Depends on the clauses — with a reversion clause, the asset returns to the donor. Without it, the bare ownership passes to the donee's own heirs.
Should the inheritance be settled in life?
Send the asset map and the heirs' details: we design the donation with the right clauses and handle the deed and registration — with a written proposal.