A distinção dos irmãos unilaterais em relação aos irmãos bilaterais na sucessão legítima no direito brasileiro contemporâneo: a crítica ao artigo 1.841 do Código Civil à luz da Constituição Federal

Abstract

This work seeks to criticize article 1841 of the Civil Code, about competing for inheritance of bilateral and unilateral brothers, in light of the possible (un)constitutionality of such distinction. If the Federal Constitution of 1988 stipulates that there should be equality between children, isonomy must also advance to the derived degrees, so that the Civil Code, in the hereditary succession between brothers (who before that are children of someone), needs to be interpreted according to the constitutional board. So, in the first section, the notion of family is updated to indicate the overcoming of the patriarchal model and based on marriage. Today, the notion of family is based on affection. as a reflection In addition, the second section deals with the issue of equality between children, from which derives equality between siblings, including for succession purposes. As a consequence, in the third section, we seek to reinterpret the institute of hereditary succession between brothers in the light of the Federal Constitution. For this purpose, an analysis was carried out between the civil law and the new paradigm of the Federal Constitution of 1988, in the search for equality of rights, in which pluralism and affection must prevail and not just the consanguineous bond, thus concluding that there is no legal reason for that they continue to be treated unequally, even among themselves. The methodology used in the work was the deductive, with a method of historical-critical procedure and with a bibliographical technique, through research in normative legal texts, in doctrine and jurisprudence applicable to the matter.