Family and Succession Law: Retrospective 2024 and Trends 2025

The year 2024 was particularly fruitful for the area of ​​Family and Succession Law due to important debates involving proposed legislative changes such as the reform of the Civil Code and the regulation of the Tax Reform, in addition to highly relevant judgments in both the Superior Courts (STF and STJ) and the Courts of Justice, directly impacting Estate and Succession Planning, considering the changes in the treatment of ITCMD (Inheritance and Gift Tax) and planning vehicles such as trusts , offshore companies , and holding companies.

Looking back at the main events of 2024, as with every new year, it’s time to think about the future and plan for 2025.

The trends for 2025 could range from the enactment of the revised Civil Code, which will bring new rules to prenuptial agreements, marriage regimes, wills, divorces, and property divisions, to the beginning of the effects brought about by the regulation of the Tax Reform.

In 2025, digital issues and their interface with Family and Succession Law should be addressed, both in relation to digital inheritance as regulated in the Civil Code Reform Project, and in the relationships between parents and children, their rights and obligations in the virtual world. Perhaps STJ Case 1137 will be judged, which deals with the validity of atypical collection measures such as the retention of driver’s licenses and passports, as well as the blocking of monetized social networks, highlighting the pecuniary value of these in the division of assets in divorces and probate proceedings.

Given the numerous tax laws enacted in 2024 and the rulings that clarified many doubts regarding the interpretation and relevance of estate and succession planning, it might seem at first glance that there wouldn’t be much left for 2025.

However, this would be a misconception. Besides a strong trend towards enacting regulations aimed at altering or increasing the tax burden in the estate and succession field, judicial and administrative interpretations at the municipal, state, and federal levels are also expected to continue to be prominent this year.

In short, since the COVID-19 pandemic, the finiteness of life has become a constant topic of discussion within families, and therefore estate and succession planning tools need to be addressed as soon as possible and constantly revisited.

 

January

Law 14.803/24, which deals with taxation in private pension plans, has been published to allow policyholders and/or beneficiaries to choose when to pay the tax.

 

February

The Brazilian Supreme Court (STF) ruled unconstitutional Article 1641, II, of the Civil Code, which imposed the mandatory regime of separation of property for individuals over 70 years of age. General Repercussion Theme 1.236 established the following thesis: In marriages and stable unions involving individuals over 70 years of age, the regime of separation of property foreseen in Article 1641, II, of the Civil Code, may be waived by the express will of the parties, through a public deed.

In addition to allowing those married or in stable unions under the previously mandatory regime of separation of property to change their regime, another legal regime was created in Brazil, whereby the regime of separation of property continues to exist for those over 70 years of age, and the regime of partial community of property applies to all others, guaranteeing everyone the possibility of expressing their will to adopt another regime through a prenuptial agreement or public deed.

 

March

Positive parenting and the right to play were established as strategies for preventing violence against children through Law 14.826/24, aiming to promote a child-rearing process based on respect, acceptance, and non-violence, as well as assigning to the State, the family, and society the duty to promote emotional support and non-violent education for children up to 12 years of age.

 

April

The Senate received the draft reform of the Civil Code , prepared by a Commission of Jurists formed in August 2023, suggesting, among other relevant changes, the exclusion of the regime of final acquisitions in marriage and that the surviving spouse ceases to be an heir in the regime of separation of property when the deceased has children or parents.

According to the presented draft, kinship relations cease to be solely those arising from consanguinity, but also those arising from affection, known as socio-affectivity. Same-sex unions

, until now recognized by a 2011 Supreme Court decision, will be legitimized by legal provision. Marriage will be defined as the union of two people, and no longer as the union of a man and a woman, as stated in the current Civil Code.

 

May

Law 14.857/24 was published, adding Article 17-A to the Maria da Penha Law, mandating the confidentiality of the victim’s name in proceedings investigating crimes committed in the context of domestic and family violence against women, without extending confidentiality to the name of the perpetrator.

 

June​

Law 14.905/24, which alters the calculations for monetary correction and interest in the Civil Code, impacting alimony and other civil debts, has been enacted.

The IPCA (Brazilian Consumer Price Index) will now be adopted, and the debtor will also be liable for losses and damages caused by the default. Interest, when no rate is agreed upon, will correspond to the SELIC rate, and if the result is negative, it should be set at zero.

 

July

Operation Loki was launched by the São Paulo State Treasury Department, sending notices to taxpayers for alleged failure to pay ITCMD (Inheritance and Gift Tax), based on suspicions of succession planning involving the simulated sale of company shares from parents to children without actual financial compensation, leading to the belief that these were donations.

 

August

The Superior Court of Justice (STJ) has ruled that income tax does not apply to inheritance received in investment funds. The ruling addressed the collection of tax by the Federal Revenue Service from heirs, understanding that the difference between the market value of the investment shares received by the heirs and the value stated in the deceased’s Income Tax Return constituted a capital gain to be taxed as such.

According to the judges, there is no gain when the heirs receive the asset at the value declared by the deceased, and only when the shares are redeemed or transferred at market value.

Resolution No. 571 of the National Council of Justice (CNJ) was published, amending probate and estate division procedures, allowing extrajudicial means even in cases where the deceased left minor and/or incapacitated heirs and where there is a will, as well as the sale of estate assets to pay taxes, costs, and estate obligations, provided there is consensus among the parties.

In divorces and dissolutions of stable unions, the division of assets can also be carried out extrajudicially, leaving the judicial process only for matters involving the interests of minor children, such as custody, visitation rights, and child support.

 

September

Another asset and estate planning tool that received significant attention in 2024 was the taxation of stock options, also known as stock purchase options. Although stock options are used in the job market as a way to retain talent, nothing prevents this type of investment from also being considered as a planning tool for family businesses. The Federal Government believes that taxation should occur, according to the income tax table, at the time the shares are received, while the Judiciary has determined that tax is only levied upon the sale of these shares if there is an increase in net worth, that is, a positive difference between the value received and the value sold.

 

October

The Chamber concludes the voting on PLP 108/24, which regulates the tax reform (EC 132/23). The bill deals with the ITCMD (Inheritance and Gift Tax), which, under the new wording introduced by the Constitutional Amendment, imposes progressive taxation, among other changes, and addresses the tax incidence on supplementary pension plans (PGBL and VGBL).

 

November

The Superior Court of Justice (STJ) recognized a socio-affective relationship between grandparents and adult grandchildren. Based on Supreme Court Ruling 622 : Socio-affective paternity, whether declared in a public registry or not, does not prevent the recognition of a concomitant filiation bond based on biological origin, with its own legal effects, the understanding of rapporteur Nancy Andrighi prevailed, admitting the concomitance of socio-affective and biological filiation in civil records.

 

December

The São Paulo Court of Justice (TJSP) ruled against the application of ITCMD (Inheritance and Gift Tax) on donations made abroad, arguing that there is no law authorizing its collection. The Superior Court of Justice (STJ) had already ruled against the tax, in a case with general repercussions, stating that until a federal complementary law addresses the issue, the tax cannot be levied. However, with the Tax Reform (Constitutional Amendment 132/23), the São Paulo State Treasury Department believed the legal gap had been resolved.

Nevertheless, the ruling clarified that the invalidity of the tax remains for donations made before Constitutional Amendment 132/23 because there is no law to support the collection claim.

The same understanding should apply to inheritances received abroad. The Superior Court of Justice (STJ) ruling, under Topic 1214

, recognized general repercussion: “The application of the Inheritance and Gift Tax (ITCMD) to the transfer of values ​​and rights related to the Free Benefit Generating Life Insurance Plan (VGBL) or the Free Benefit Generating Plan (PGBL) to beneficiaries in the event of the plan holder’s death is unconstitutional.” Therefore, the collection of Inheritance Tax on amounts received from private pension plans left by the deceased was declared unconstitutional. Our Family and Succession Law team is available to assist you with these matters.