A renúncia à herança no pacto antenupcial: uma análise a partir do direito fundamental ao acesso à justiça na perspectiva da prevenção dos conflitos sucessórios

Abstract

This dissertation investigates whether the premises established by the legislator and defended by the majority doctrine to support the legal prohibition on the renunciation of inheritance in the prenuptial agreement resist the application of Karl Popper's hypothetical-deductive method, considering the need to seek the prevention of conflicts such as way of implementing the right of access to justice based on Mauro Cappelletti's theory. The family is the basis of society and from it other interpersonal relationships and complex, unique, unrepeatable and concrete conflicts originate. With the advent of CRFB/1988 and CC/2002, the systematization of Family and Succession Law profoundly altered affective relationships in Brazil, giving rise to conflicts that cannot be adequately addressed by the State. From a perspective of autonomy and the search for ways to prevent succession conflicts, this multidisciplinary investigation is organized into four development chapters. Initially, a synthetic analysis of the historical evolution of the family in society was carried out, focusing on marriage, property regime, prenuptial agreement and the succession consequences promoted by legislative changes. Next, the concept of access to justice restricted to the judicial process was presented, to then deconstruct it based on the concept developed in the Florence project, led by Mauro Cappelletti, a theoretical reference regarding the new paradigm of access to justice. In the following chapter, after presenting the concept and investigating the purpose of family patrimonial and succession planning and its importance for the realization of the autonomy of the parties, we begin to subject the premises of the impossibility of renouncing inheritance to Popperian refutation and falsification tests. It was possible to conclude that the reasons that support the prohibition of non-succession succession pacts are no longer sustainable and go against the needs of preventing succession and family conflicts. Therefore, in the last chapter we present proposals to enable the use of the prenuptial agreement as a tool for succession planning and the realization of the right to access to justice