Advancement of inheritance: what does the law say about heirship

The transfer of assets during one’s lifetime, especially between parents and children, is treated under Brazilian law with rigor and precision, aiming—at least in theory—at a fairer distribution of the estate among those who survive.

Although many assume that a family gift is merely an act of generosity (and, of course, it is natural to think so), in legal terms it produces direct effects on the future probate process and on equality among heirs.

This brief article explains, in an accessible and objective manner, how an advance on the forced heirship share works, what collation entails, how the disposable portion operates, and the legal risks faced by anyone who conceals gifts received.

1. A father’s gift to a child: the legal rule few people know

The Brazilian Civil Code provides that any gift made by an ascendant to a descendant is presumed to be an advance on the forced heirship share, unless the donor expressly declares otherwise. This is, in my view, the single most important point in this entire subject.

In practical terms, this means that whatever is agreed upon during one’s lifetime—when it concerns inheritance—should be put in writing: a formally executed deed of gift and, of course, communicated to the other future heirs.

The law presumes that a father, for example, who gave his son that black 1979 VW Beetle as a birthday present is, in fact, making an advance on the inheritance. Therefore, when this kind father passes away and probate is opened, the information that João received from Pedro the 1979 VW Beetle must be included in the probate file.

This act of disclosure is technically called “collation.” Therefore, João must report this gift in the probate proceedings and, through his lawyer, carry out the collation. The purpose is to equalize the estate so that all heirs receive identical shares.

However, if Pedro wishes to donate the 1979 VW Beetle and does not want João to have to report it in the probate proceedings later, Pedro must formalize the gift and state—objectively and clearly—that the asset is being given to João out of Pedro’s disposable portion, i.e., the 50% (fifty percent) of his estate over which he is legally free to dispose.

In other words, to simplify the matter: an asset received by a forced heir (a child, in this case João) forms part of that heir’s future inheritance, and the value of the gift must be brought to collation—that is, disclosed in probate—in order to equalize the shares among the other heirs.

The legal logic is straightforward: to prevent one heir from receiving, during the donor’s lifetime, a disproportionate patrimonial advantage that distorts the lawful distribution of the estate.

It should be noted that an advance on the forced share (or inheritance) is not the same as a lifetime partition. They are entirely distinct legal institutes. The former is what we address in this brief article; the latter, in a future one.

2. The duty to collate: when silence becomes concealment

If a forced heir received a car, a plot of land, money, or any other asset from their father or mother, they are required to declare that gift in the probate proceedings.

But let us consider the common scenario in which João is not particularly interested in the matter and, despite being pressed, remains silent and refuses to disclose in the court record the asset he received during his father’s lifetime.

Well then: the law anticipated precisely this situation and imposes a civil sanction as a consequence of such concealment—and concealment entails severe consequences:

a) Loss of the right to the concealed asset;

b) The obligation to compensate for losses;

c) Civil and patrimonial liability.

Collation does not require returning the asset to the estate; it requires only that the gift be disclosed and accounted for in the division of the estate, so as to preserve the equality provided for in Articles 1,847 and 1,992 of the Brazilian Civil Code. The statutory text reads:

Art. 1,847. The forced share is calculated based on the value of the assets existing at the opening of the succession, after deducting debts and funeral expenses, and then adding the value of the assets subject to collation.

Art. 1,992. The heir who conceals estate assets by failing to list them in the probate inventory when they are in his possession, or, with his knowledge, in the possession of another, or who omits them from collation when required to bring them to collation, or who fails to restore them, shall forfeit the right he had over them.

It is clear that the law provides for such a sanction—an essential mechanism to ensure an equalization of inherited assets.

3. Gifts to third parties and the limit of the disposable portion

In the case of a gift, if the 1979 VW Beetle—the object of our analysis—were (or is) given to a third party, that is, to someone who is not the donor’s forced heir (in our case, Pedro), such a gift is not subject to collation.

However, another fundamental point comes into play here: the donor’s disposable portion of the estate, which, as noted, corresponds to 50% of his assets. The other 50% cannot be given away, because it constitutes what is known as the “forced share” (legítima), which is nothing less than the non-disposable portion that must, by law, be reserved to forced heirs (children).

If the ascendant—in this case, Pedro—exceeds this limit by making gifts to third parties, i.e., by giving away more than 50% of his estate, the liberality becomes inofficious and may be judicially reduced to safeguard the forced share of the heirs.

By “inofficious,” one understands this unlawful excess in gifts or testamentary dispositions that violates the minimum entitlement of forced heirs.

However, if the donor exceeds the limits of the disposable portion in favor of an heir or a third party, the following measures apply:

a) Reduction of the gift, bringing it into compliance with the legal limits;

b) Set-off/compensation in the partition of the estate;

c) Protection of the forced share of the remaining heirs.

The law preserves the freedom to make gifts, but it prevents such liberality from undermining essential succession rights.

4. Gifts to descendants, spouse, and domestic partner: specific rules

It is clear that collation is required only of forced heirs—children—unless, as stated above, the deed of gift expressly provides that the asset is being conveyed out of the donor’s disposable portion, which, as noted, is 50% of the estate.

A very common question concerns the appearance of a new forced heir—for example, the birth of another child. This does not invalidate gifts made before the child’s birth. However, if the probate proceedings have not yet been concluded, the partition may require adjustments so that all heirs receive the share to which they are legally entitled.

There may also be a need for collation when the recipient is a spouse or domestic partner, because this depends on the marital property regime adopted by the couple. Under the regime of universal community of property, for example, there are situations in which assets are not subject to sharing; under other regimes, collation may be required to prevent patrimonial imbalance among the heirs—an issue to be addressed in a separate analysis.

CONCLUSION

Brazilian succession law protects forced heirs and imposes clear limits on lifetime gifts. Ignoring these rules can turn a family present into a serious legal problem, with patrimonial losses, nullities, and long-lasting conflicts.

The solution is always the same: clarity, proper documentation, and correct disclosure in the probate proceedings. Avoiding confusion, quarrels, and intrigues—which so often arise in probate cases—is a good way to have the matter concluded with relative speed.

Gifts are lawful, but their succession-law consequences must be respected in order to ensure a fair and legally secure partition of the estate.

Source: Law No. 10,406/2002 — Brazilian Civil Code.