Paridade entre casamento e união estável, em sede de efeitos sucessórios do art. 1790/CC, nas relações homoafetivas, sob a perspectiva do direito civil-constitucional

Abstract

The family plays a role of fundamental importance for the society development, considering the inclusion of its members in social life, establishing their first interpersonal relationships, as well as promoting personal fulfillment and happiness for each member. The Brazilian Constitution promotes special protection to all family entities based on the principles of human dignity, equality and affection. There is a relative equiparation between the institutes of the Family Law, marriage and stable union, both considered family entities and deserving of State’s protection. However, despite being similar, the institutes still have their particularities, especially regarding the Succession Law. The legislator erected the spouse a series of inheritance rights, dismissing the partner a much lesser treatment, boarding the unconstitutionality. These differences reflect in the pairs formed by people of the same sex. The Supreme Court, in the judgment of the Direct Action of Unconstitutionality 4277 and the Accusation of Breach of Fundamental Precept 132, recognized the stable homosexual union the same rules and consequences of hetero-affective stable union. Meanwhile, the National Judicial Council issued the Resolution No. 175 prohibiting notaries from all over the country to deny the license, civil wedding celebration or conversion of stable union in marriage between same sex people. These steps taken by the judiciary reflect an omission of the legislator that affront the constitutional principles underlying the current Democratic State. The homoaffective wedding study in Brazil shows to be relevant in face of their legal situation, completely detached from formal regulation, but still effective enough to ensure that homosexual couples can come to the same inheritance rights that heteroaffectives.