Regime sucessório do cônjuge e do companheiro: indevida diferenciação

Abstract

This scientific paper seeks to demonstrate that the ordinary legislator, who edited the Civil Code in 2002, overstepped in its legislative activity when he created a differentiation of sucessory treatment between surviving spouse and the surviving companion not authorized by the constitutional legislator. How the 1988 Federal Constitution has already recognized the existence of other forms of family entities besides marriage and it is well established among us in 2002 the match of succession rights between the surviving spouse and the surviving companion by the Laws nº 8.971/94 e 9.278/96, when the new Civil Code was published, the new Codification cames to break this parity treatment, passing to provide some rights to the spouse that were not extended to the companion, putting that first one in a privileged position. That legislator’s behavior over breach the principles of human being dignity, equality, substantive due process of law and social retrogression ban, which implies the recognition of unconstitutionality of these discriminatory legal provisions, in order to be restored the hereditary treatment parity between the spouse and the companion