In a unanimous ruling, Brazil’s Supreme Federal Court (STF) upheld the constitutionality of a key provision in the country’s civil procedure rules, effectively allowing heirs to receive formal ownership of inherited assets without first having to pay the estate tax (ITCMD). This decision, issued in April 2025 in Direct Action of Unconstitutionality (ADI) 5.894/DF, has major implications for families, estate lawyers, and courts handling uncontested inheritances.
What Changed?
At the center of the dispute was Article 659, §2 of Brazil’s Civil Procedure Code (CPC/2015), which allows courts to issue formal inheritance documents—such as the formal de partilha (deed of partition) or carta de adjudicação (adjudication letter)—without requiring heirs to prove that they’ve already paid the ITCMD, Brazil’s state-level estate tax.
Instead, the tax payment is to be handled after the court formally recognizes the division of the estate, giving heirs time to access inherited assets before settling their tax obligations.
Why Was This Challenged?
The Federal District (Distrito Federal) filed the constitutional challenge, arguing that:
- Only a complementary law, not a civil procedure rule, could regulate aspects of tax enforcement;
- The rule might violate the principle of tax equality by giving heirs in certain cases special treatment.
What Did the Supreme Court Say?
The STF rejected the challenge, confirming that the rule in question is procedural, not tax-related. It doesn’t eliminate or reduce the tax—it merely determines when the government can demand payment during court proceedings.
This procedural rule only applies to “summary probate” cases (arrolamento sumário), which are simplified inheritance proceedings used when all heirs are in agreement and legally competent. The court emphasized that this rule:
- Does not create a tax exemption or prevent the government from collecting the tax;
- Merely reorganizes the sequence of procedural steps, in favor of faster resolution.
A Win for Simplicity and Justice
The court’s decision highlights an important point: the recognition of an heir’s right to an inheritance is a declaratory act, not a transfer that requires upfront tax payment. In other words, recognizing someone’s right to inherit does not mean the estate has been legally transferred or taxed yet.
This is especially important in cases where heirs don’t have the liquidity to pay the tax before receiving their inheritance—such as when they inherit property but have no cash on hand. The ruling allows them to access the inherited assets first, and then pay the ITCMD based on the assessed value.
No Violation of Tax Fairness
The court also rejected the claim that this rule violates the principle of equal taxation. That’s because it applies only to a specific type of procedural case, and not based on the value or nature of the inheritance. It’s a process rule, not a substantive tax privilege.
The court further clarified that nothing in the rule restricts state governments from issuing tax assessments or collecting ITCMD once the inheritance is formally declared.
Practical Impact for Estate Planning and Legal Professionals
This decision is a welcome relief for estate attorneys and families managing uncontested probate cases. It streamlines the process and removes one of the biggest bureaucratic hurdles: having to pay a potentially large tax bill before gaining access to inherited assets.
Now, families can move forward with estate division more quickly—even in financially constrained situations—and settle the tax with more flexibility.
Conclusion
With this ruling, the STF has struck a balance between legal certainty, fiscal responsibility, and judicial efficiency. The decision reinforces the idea that tax collection procedures must not obstruct access to justice, especially in cases involving simplified inheritance proceedings.
For estate lawyers and advisors, this is a strong precedent to rely on when facilitating inheritance transfers—ensuring that clients can settle estates more swiftly without running into procedural roadblocks.