Law and Justice

Restrictions on the right to donate.

by Danilo Santana - Brazilian Writer

While that may seem apparently citizen has the right to use and dispose of their property so unconditional in life is important to note that the civil law lays down limits for both, especially when it comes to donation.

 

See how the Civil Code provides:

 

Article 548. It is nil the donation of all goods without reservation of part, or enough income to support the donor.

 

Article 549. Zero is the donation on the part that exceeds that of the donor at the time of donation, will be available in.

 

Donate to third parties:

 

As the Civil Code provides for donations to others in life are subject to the same rules of disposal of property through wills, or that the donor has no heirs may need to give others more than fifty percent of the goods that have to date the donation.

 

The Civil Code defines as heirs need the upside, (parents, grandparents, great-grandparents etc.). The descendants (children, grandchildren, great-grandchildren etc..) And spouse (husband or wife).

 

Thus, only this category of heirs is that the right to reserve the property in case of donation in life or will that goods intended for others. Here are all possible third parties that do not benefit the heirs needed.

 

Donation for children and spouse:

 

It should be emphasized, however, that the donations for the children and spouse have different legal characteristics in relation to the other parties, sometimes called the third.

 

The gifts for children and spouses are regarded by law as an anticipation of the inheritance. Thus, when the death of the donor, the assets that have been donated to children and the spouse or be listed in the inventory as anticipation of legitimate and balanced in their respective shares in the other heirs.

 

The legal term anticipation of legitimate means exactly the special character that the law gives the gift of parents to children and heirs to the donation of one spouse to another.

 

The Civil Code provides:

 

Article 544 - A donation of upside to downside, or a spouse to another, it's advance to them by inheritance.

 

We must point out that if a donation to one of the children, or the spouse, the gift becomes the inheritance in advance. So if there is a legal reserve due to the other heirs needed this donation may become invalid if the donor were to die.

 

 

Reserve assets for maintenance of the donor:

 

Moreover, there are also seal to the donation total of goods where the donor non-reserve assets and resources able to maintain themselves.

 

Thus, to make a donation of goods to the donor noted two things: a) if the donor is necessary heirs (parents, grandparents, children or grandchildren) can only give half the property, since the other half should be reserved for the heirs necessary b) if the donor does not have resources capable of ensuring its survival, the donation of all his property is void.

 

The Civil Code provides:

 

Article 548. It is nil the donation of all goods without reservation of part, or enough income to support the donor.

 

In summary, the right to donate is not totally free and unlimited. The law imposes conditions and limitations that must be met.

 

However, by appropriate, must be registered to donate that is different from sell or spend. The citizen fit for the acts of civil life has the right to sell their property and spend their wealth in the form and manner that best fit him, independently of maintaining reserves and independently of the approval of parents or children.

 

It is important to record, however, that up to sell your fortune and spend the citizen should be able to find the acts of civil life. This means that the citizen, to sell goods and spend (unreasonable) its financial resources, should be enjoying perfect mental health, so in a perfect position to discern the consequences of their actions.

 

The Civil Code is clear:

 

Article 1767. They are subject to curatela:

I - who, for illness or mental disability, have the necessary insight for the acts of civil life;

II - those who, for other cause lasting, can not express its will;

III - the mentally handicapped, the usual drunken and addicted to toxic;

IV - the exceptional without full mental development;

V - the prodigal.

 

If the donor is considered extravagant (that waste, spent or donated in excess) or without discernment for the acts of civil life, interested in where the family members, may require the legal prohibition and, consequently, it becomes prevented from exercising this option. 

 





Comments and Opinions

1) Full of Doubts Patricia (14/1/2009 at 14:24:38)
Can the widow meeira ask that all the heirs sign a grant them the right to henrança of her for only one heir, when the widow is still alive?
 
2) Felix (15/1/2009 at 15:21:45)

If I understand your question, you want to know if all heirs (brothers) may agree with the mother for only one of the heirs to be part of the goods, perhaps, will be subject to inheritance.
Yes through an Office of Assignment of Dir Hered. This assignment may be the totalid. or part. When the inventory, the value of the donation will be computed in advance as legitimate, or the beneficiary of the donation, will have discounted the value of the q received. Tax deals
 
3) Concerned (31/1/2009 at 21:16:46)
Child out of wedlock have the same rights of legitimate children of the marriage, in real estate.
 
4) Giuliana (1/2/2009 at 18:46:56)
The PRIMOD and my grandfather HAVE 79 YEARS AND NEVER HAD ESPOSADA BROTHER IS NOT LIVE, IT IS SOBRINHO that do not care about HIM, OR MAKE A DONATION TO ME HIS CARE, AND SO PASS YOUR PROPERTY FOR ME, IS THAT THE CAN DO THIS ?
 
5) Antenor Peña (5/2/2009 at 21:21:17)
My father-in-law has a fairly heritage. But he insists only help a child (he has three including my wife). Has passed several cars and finally "invested" 210,000 for the child "Prodigo" opened his own business. He went bankrupt. Asked about how "ahead" of legitimate desconversa and he presents a history full of vicissitudes. Gave initial 30,000, more then 80,000 and finally sent his brother (uncle of the unfortunate) simulate a loan of over 100,000. Continue to the next ...
 
6) Anteror Penha (5/2/2009 at 21:27:25)
Continue ... My wife does not see a penny. Asked about the loans that answered my father-in-law has documents that his "boy" signed a promissory note, but in the end there is nothing to record this confusion of transfer of resources. He is son, once all that is received in advance legitimate. Is there any legal remedy that can minimize the loss of my wife? The in-law is 72 years, no account is right, can control the account and the bank is equal to a gate.
 
7) Sandra (10/2/2009 at 10:53:59)
I have 3 children and made my donation of property subject to use and fruit. am I correct?
 
8) Vilmor (11/2/2009 at 00:36:11)
Young senior, he has virtually no lucidity, spent an attorney for one of two children and granting authority to sell part of its sole property and transfer of the other party for him. The result of the sale that somou good sum of money is being used by him (attorney) without accountability. What the prosecution to avoid the injury of another child?
 
9) Concerned (25/2/2009 at 16:01:47)
My grandmother made a donation of a house for me, with the consent of my mother, and family are two grandchildren from my uncle who has died, they got right in this property?
 
10) Mary Angela (9/3/2009 at 12:00:14)
The only good a friend is a property that sold for 150 thousand lea. she wants to give this money to the same granddaughter buy a property but she has two sons who are his heirs. it can deliver the granddaughter this money without the written permission of the children heirs? A lawyer friend told me that way she can she can give life in all assets to who you want just make a statement of mental capacity, that is true?

is the only well beyond the retirement that maintains
 
11) Maria (15/3/2009 at 17:44:48)
Received a donated property whose former owner had debts with the recipe. What to do?
 
12) Luciana (17/3/2009 at 11:59:23)
in the case of meieira want to donate their share to only the grandchildren of his daughter the other children heirs will need to agree (sign)
 
13) Carla (31/3/2009 at 10:51:39)
I wonder if the father can only donate to one of the daughters of a certain amount of money they received for compensation for the purchase of a property. Under it, the other two children have already received donations of property.
 
14) Samia (1/4/2009 at 13:14:49)
my father made me a donation of a house. I can sell it when I want?
 
15) John Carlos (4/4/2009 at 16:26:50)
what time and how it should be the alleged invalidity of the donation made for 2 children to the detriment of other 2? is the proper action of inventory / inventory?
 
16) Sonia (13/4/2009 at 17:59:27)
What is AVO can donate IRMA YOUR HOME FOR TWO TO SAO SAO NETES OF MINORS AND MORE MORE ERDEIROS Tenma
 
17) Maciel (14/4/2009 at 21:54:26)
the aunt of my wife made the donation of 100% of her house still life (though only had) with the enjoyment of her brothers and family of my wife was out of sharing. Is there any chance of winning court, since she donated 100% of their assets? Thanks
PS She died
 
18) Neta (18/4/2009 at 23:31:31)
My grandfather and widows, two daughters, my mother is deceased and another, my grandmother had two more outside this relationship, were married in total communion of goods, he wants to spend half of their property to me, is possible? he has a house on the beach and an apartment in the city, the interest it is that I keep the apartment just for me as usofruto, can we make a deal in family life, where I hand and he opened the house to get to the beach with the apartment?
isthacamargo@bol.com.br
 
19) Zeh loose (28/4/2009 at 22:55:41)
Flock of cow's hand, consult a lawyer!
 
 
20) I (5/5/2009 at 01:45:28)
The Zeh loose there must be a lawyer from door-chain, to speak it.
 
21) Sydney Doniseti Fortin (7/5/2009 at 19:13:41)
"I leave to congratulate the completion of Master Prof. doctrinaire. Doctor with respect to matters in focus, which relates specifically to the issues of invalidity of the donor to have the property without reserve to their sobrevivênvia.
Regards.
Sydney
OAB (SP) 151667
 
 
22) Can (18/5/2009 at 20:21:08)
I am 79 years want to sell the house for a price equivalent to 60% of cases having more right to use and fruit. I have 5 children and elel prevent the sale so I got this imovel
 
23) Maria Antonia (27/5/2009 at 08:11:29)
Doei for my children to my part of the building belonged to me after my separation. It happens that today the property is rented out and my ex-husband receives no rent and no passes for the children, because it argues that the enjoyment of it. I would like to know, urgently, is making this claim it? Tomorrow with the majority may lose my children I made the donation? We are extremely worried.
Grateful for the attention.
 
24) Marcio Santos (28/5/2009 at 15:07:44)
Dear Danilo,
Follows an unusual situation and I am a stubborn resolve dramatically.
I am a student of law at Santa Catarina, a short time my father met my grandfather, prompted the examination of DNA to 5 years late it was positive showing my father, as legitimate child of my grandfather (excuse the redundancy) but this age My grandfather had advanced only 1,000 hec. of land of which had almost 7 thousand in dec. 70/81conforme of the survey I made before the notary in the region
 
25) Márcio Santos (28/5/2009 at 15:13:29)
my grandfather gave to the brothers of my father about 5 thousand hec of land in life, after my grandfather had ciencia q has a child outside marriage, tried to donate the rest to other children, leaving my father without a penny, Q we get? possivelrequerer is the return of these goods? He acted in bad faith against the disc inheritance? what action should be judged?

Advance thanks.
marcio.adidas @ hotmail.com
Márcio Santos
 
26) Emilia (29/5/2009 at 19:43:06)
I wonder from what age, the elderly may not have clear your goods as you?
Now grateful
Emilia
 
27) Neves (30/5/2009 at 01:14:27)
Questions are very relevant to our day to day, plus I can read only one answer, why?
 
28) Anita Soares (31/5/2009 at 19:27:21)
What is the daughter of my deceased is 04 years is entitled, the sale of the house of my parents? How quickly she loses that right?

Now, thanks
Anita.
 
29) Anita Soares (31/5/2009 at 19:37:28)
Subject: daughter of my deceased brother.

Sorry and thank you now.

Anita.
 
30) Melo S (8/6/2009 at 20:50:07)
my grandmother who died a month ago donated 80 percent of their assets at the time she already had more than 70 years, I can cancel these as heir donations. required
 
31) Mario Vieira (11/6/2009 at 22:54:54)
My father-in-law died left property my wife and two brothers, he was a widower married again but now we pay the ITCMD so the children paid the lawyer said that the widow and do not pay this meeira this correct?
Grateful
Mario Vieira

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