Inheritance Law in Brazil

@manasknew An interesting question. I am looking forward to hearing answers. I do believe that whoever has the keys, now has the car.

Roddie in Retirement

The inheritance process is brazil is quite complicated and prolonged (I have friends that have had assets in inventario for more than a decade) and you really need to talk to an attorney.  But at a high level, my understanding is that the surviving spouse gets 50% of the whatever assets are in her name and the children get the other 50%.  So I don't think you get the car 100%. Again best to consult with an attorney specialized in inheritance law.

@ymartinez

Thanks! So ... taking it further .... right off, 50% was mine. The remaining 50% of what she had gets divided equally between kids and me - 50% of 50% each party ... or 25% of total to me, rest 25% divided between the kids?

As a family law attorney with an office in São Paulo, Brazil, I can help clarify your situation. Let's go through the key points:

1. Property Regime

In Brazil, there are different property regimes that can be chosen in marriage, the most common being:

Partial Community Property: All assets acquired after marriage are common, except those each spouse owned before marriage or received as inheritance/gift.

Universal Community Property: All assets, present and future, are common to the couple.

Total Separation of Property: All assets acquired before and after marriage remain individually with each spouse.

In your case, you mentioned that there was a prenuptial agreement in the US, which was legalized in Brazil, determining the community property after marriage.

2. Divorce in Brazil

You mentioned that the divorce occurred in Brazil and that the assets were divided according to the community property regime adopted.

3. Inheritance and Children's Rights

In Brazil, inheritance is governed by the Civil Code. In the event of the death of one of the spouses, the assets are divided as follows:

Half of the common property (meação) belongs to the surviving spouse.

The other half is divided among the heirs, including the children, respecting the order of succession.

Applying to Your Case

The Car Purchased After Marriage:

Since the car was purchased after the marriage and with joint money, it is considered common property.

If there was no death, in the case of divorce, the car should be divided 50/50 between you, according to the adopted property regime.

If your spouse has passed away:

Half of the car (meação) belongs to you, as it is common property acquired after marriage.

The other half of the car will be divided among her heirs (the children).

Summary

In the case of divorce: The car will be divided 50/50 between you and your ex-spouse.

In the case of your spouse's death: You get 50% of the car (meação) and the other half will be divided among her children.

Final Considerations

To get more specific and suitable advice for your situation, especially considering the validity and applicability of the prenuptial agreement in the US and its legalization in Brazil, I recommend consulting a lawyer specialized in family law and succession in Brazil.

I hope this helps clarify your situation. If you need any further information, I am at your disposal!

@manasknew it's best to consult an attorney as it might depend whose name was on title.  I THINK you get only 50% the other 50% would be divided amongst her kids.

    I am a US citizen, was married in Colorado and living with a Brazilian (with Green card) in Sao Paulo. She recently expired. I have primarily one item of inheritance to resolve that hopefully someone here with valid knowledge can help with! Background + question ...
We had a prenup from US that was legalized along with our marriage certificate by a Brazilian Consulate. It effectively allowed one to keep all assets we had before marriage separate and to oneself, but shared everything after marriage 50/50. She was divorced in Brazil where all assets remained joint with her ex-husband ... one of the types allowed in Brazil. She is survived by two adult sons and an ex-husband.

She had bought a car in her name in Brazil after our marriage and we moved to Sao Paulo, 100% paid off with my/our joint money.

Question is, per Brazilian law, do the sons have any right (her portion) to the car? Does the car belong to me 100% or 50%?

I am ok with her other asset, part of the house that she had before our marriage with the ex-husband, pass on to the ex-husband.

Appreciate any help, Thanks in advance!
   

    -@manasknew

Probate works as such....

Fair Disclosure myself.... Not a trained attorney.  Just my own experience on the matter.

All assets acquired in joint ownership, once one  is deceased, the surviving spouse is entitled to, free of inheritance taxes or encumbrances, half of the assets declared into the probate.  The remainder 50% goes towards, by default,  direct descendants or anyone named in the will.

The descendants, all named in the will, are taxed up to 3% of the assessed value of the Estate under probate (ITCMD) , towards State Taxes.  Attorney fees are negotiated ( there is a floor rate most of them claim to exist, which nonsense), and the Public Notary of Record underwriting the prolate collects a flat fee proportional to the Estate's assessed value;. 

If anyone decides to renounce their share of the will, he/she  has to file and post a notarized affidavit making oneself exempt on their share of their  bequested  inheritance.

Draw your conclusions as you may. This is pretty much  how it works.

Probate works as such....    -@sprealestatebroker

As a point of reference, how does probate in Brazil differ from the US?

I understand that in absence of a properly documented will, probate is desirable and could take a long time / complex to resolve.

If someone has left a well documented clear public or private will, will this not minimize probate to just payment of the title fees or taxes?

@Marcelo de Paula

Thanks! So I don't get 1/3 of the 50% of the car?

    Probate works as such....    -@sprealestatebroker

As a point of reference, how does probate in Brazil differ from the US?
I understand that in absence of a properly documented will, probate is desirable and could take a long time / complex to resolve.

If someone has left a well documented clear public or private will, will this not minimize probate to just payment of the title fees or taxes?
   

    -@Pablo888

Up to a certain value, you are exempt on taxes.  Beyond some treshold, it does not matter if it was a will or a donation, you are subject to the ITCDM levy. 

A 3% is a Sao Paulo rate.   Other states might have different excise rates.

@manasknew

Hello Sir,

Thank you for your response. It seems there was some confusion regarding the two hypothetical situations I mentioned earlier. Let me clarify in more detail:

In Case of Divorce:

Regime of Partial Community Property: If the car was purchased after the marriage with joint money, it is considered common property.

Division: In the event of a divorce, the car should be divided 50/50 between you and your ex-spouse, as long as you adopted the regime of partial community property in Br law regime.

In Case of Your Spouse's Death:

Half Ownership (Meação): Half of the car (50%) belongs to you because it is common property acquired after the marriage.

Inheritance: The other half of the car will be divided among your spouse's heirs (the children, if any).

However, you mentioned a doubt about receiving 1/3 of the 50% of the car. This might be a confusion between half ownership (meação) and inheritance. In the event of your spouse's death, you do not receive an additional fraction of the car as inheritance; you are entitled to 50% as half ownership, and the other half is divided among the heirs.

Final Considerations:

To get more specific and suitable advice for your situation, especially considering the validity and applicability of any prenuptial agreement in the US and its legalization in Brazil, I strongly recommend consulting a lawyer specialized in family law and succession in Brazil. Only a detailed analysis of your factual situation can precisely define your rights.

I am available for any further questions!

Best regards,

Marcelo de Paula

@roddiesho

NOT

@sprealestatebroker

Thanks!

@Marcelo de Paula

Thanks, Marcelo, you have really clarified the doubt for me, and sincerely appreciate your help! I am ok with the car situation now... normally I would not bother about it, but I am not in a great financial situation now, so have to make sure I don't leave money on the table at least. At the same time I don't want to present myself with a lawyer in tow right off the bat. I have great relationship with my ex's two kids as well as the ex-husband (I think!). The house has been up for sale for past two years with just 1 serious visit, so it could take a few more years, and the kids and ex have said I can continue to stay till house is sold of when I want to leave. I am now ok with the car situation, it is actually worth more than what we had bought it for, so what I get even with 50% will help, since we were living on my US social security plus her SS entitlement off mine, and now I will be left with just mine ... it will be hard, I will need to assess if I can continue in Sao Paulo when / if I have to move or if have to move to a more remote cheaper place, in Brazil or another country, etc etc! Definitely cannot live on what I get back in the US!

I do have one other topic perhaps you can help with ... I know I am not entitled to any part of the house, per the prenup and otherwise. But my ex and I had a verbal agreement that if she expected for me to pay for a lot of the repair and renovation for the house and other items we have bought (refrigerator, washing m/c etc), I should get an equivalent % of what she ends up making when she sells the house. So can I expect, do I have any rights, to at least get reimbursed for what I have spent for the house? My guess is this will be totally up to them, except. If they don't reimburse, I should in worse case situation be able to take all the movable items like refrigerator, washing m/c etc which I will need to buy in a new place otherwise?

Her side of the family happens to have a member who is a lawyer, and another who is a "cartorio de moveis". We will be sitting down to draw up all the paperwork and "inventerio" and see if we can resolve things amicable so we don't have to go through the formal process and pay 3% and wait a year or so for things to settle. That is why I am trying to get a read on my standing before that, hopefully don't have to argue and bring in a lawyer.

Trust this explains some of the missing details. Sincerely appreciate your assessment and advice! If you are ever in SP, let me know we should get together....alternatively my base is in the Bay Area for which I have to fly into LA most times, so we could meet up there as well, like to get to know you!

My wife has often told me, when someone in Brazil dies, the most asked question will be..............

"who is gonna get the house?"

@KenAquarius Well, I am in a unique position since I am not a Permanent Brazilian Residence yet... it won't be me, however Whatever acres this is and all three houses, the Sorvette Shop, the property behind the houses and the community park across the street belong to my wife. Everything my wife owns will go to our Brazilian-American daughter, who is also a Brazilian Citizen.

So, I just live here....by the pool.... with Simba

Roddie in Retirement

All of this over a damn car. 

It it is real estate, it is worth pursuing what's yours under the law.

For a car...

Unless is a rare, collectible, or a very expensive one, chalk it up as a loss. Let them have it. 

She is bound to have something out of you worth her while for putting up with you.

Cars depreciate, real estate appreciates.