BETWEEN AUTONOMY AND SOLIDARITY: A PROPOSAL FOR CHANGING THE “LEGÍTIMA” BASED ON THE CUBAN SUCCESSION MODEL - DOI: 10.12818/P.0304-2340.2025v86p183

Abstract

In most legal systems, private autonomy is
limited by the government in such a way that
the author of the inheritance cannot freely
determine the destination of all of his assets
and must observe the “legítima” share of the
necessary heirs. Traditionally, this untouchable
percentage of the inheritance seeks to protect
the family and ensure objective equality
among the heirs. However, the imposition
of the “legítima” through a generic and
impersonal state command not only reduces
the private autonomy of the testator, but
also does not always satisfy the principle of
family solidarity. Therefore, it is necessary
to investigate alternatives that, although
they do not eliminate the “legítima”, correct
its main practical dysfunctions, such as the
welfare model adopted by Cuba. Guided
by these premises, the research adopted the
legal-dogmatic methodological approach,
of legal-comparative and legal-propositive
types, with the aim of presenting, based on the
comparison between two legal systems, solid
reflections on the need to modernize the rules
that regulate the inheritance phenomenon
in Brazil. The main objective is to offer
reasonable solutions for the replacement or
adaptation of the “legítima” through a legal
mechanism that guarantees compliance with
the principle of solidarity without, however,
sacrificing private autonomy on the altar of the welfare functionalization of the inheritance.
The conclusion was that Brazilian inheritance
law should be reformulated so that the private
autonomy of individuals is restricted only
to the extent that it ensures the necessary
assistance to the heirs of the deceased in a
situation of economic vulnerability.

KEYWORDS: Succession Law. Legítima.
Private autonomy.