Releitura Constitucional do Instituto Jurídico da Legítima

Abstract

With the aim of reshaping the forced share institute to the demands of what is believed to be the environment of constitutional contemporaneity, the dissertation concludes na interdisciplinary provocation involving the troubled relationship between property, family and inheritance. At first, the research relies on social historiography to show that the origin and development of these phenomena occurred in an imbricated way, justifying the establishment of rules that determined the conservation of a given estate in a formal and institutional family structure, projecting it beyond the death of its members. Soon after, it is shown that there was a violent rupture of this paradigm in the fabric of postmodernity, consolidating a new social and juridical formulation of the family, which naturally evoked a need to reformulate the succession phenomenon itself. Based on this premise, the work draws the new beacons that would consecrate a constitutionalised inheritance law, constituting a relevant philosophical, fundamental, theoretical-normative and methodological foundation that would justify the rereading of all the institutes that are validated in it. Finally, after presenting the origin, evolution and current panorama of the freedom of testation in the western world, the work evidences the constitutional destruction of the taxable, formal and mathematical archetype that qualifies the classic forced share, proposing its replacement by an open model, based on what would be "family provisions" and "flexible restraints". A model that prioritizes the problem in concrete, demands the accomplishment of factual incursions and stimulates the use of topics and rhetoric, overtaking the functional, the fair and the reasonable.