A recent ruling balances tax responsibility among heirs and prevents unjust enrichment in inheritance disputes
Brazil’s Superior Court of Justice (STJ) has issued an important decision with cross-cutting effects in both inheritance and tax law. In a case involving two heirs and a shared estate, the Court held that the heir who exclusively occupied a property from the estate should not be required to pay the full amount of property tax (IPTU) if compensation has already been established for their exclusive use of the asset.
The decision affirms key principles: the solidarity of heirs prior to the division of estate assets, and the need to avoid double recovery or unjust enrichment in succession scenarios.
The Case: Exclusive Occupation and Full Tax Burden
The dispute arose during the probate of an estate involving two sisters. While the estate was still being settled, one of the heirs exclusively occupied a residential property belonging to the estate. Upon approval of the asset distribution (partilha), the lower court ruled that this heir should bear 100% of the IPTU, thereby exempting the estate — and effectively, the other heir — from liability.
This ruling was upheld by the state appellate court, which argued that the exclusive occupation itself justified the full tax liability, even though the occupying heir had already been ordered to compensate the other sibling for her portion of the property through a monthly indemnity equivalent to rent.
The occupying heir appealed to the STJ, arguing that the property was still part of the undivided estate at the time, and therefore the tax liability should be shared among the heirs. She also highlighted that the IPTU is an “obligation propter rem” — linked to the property itself — and that she was already being financially penalized through compensation.
The STJ’s Position: Tax Burden Must Be Shared Until Asset Division
Justice Antonio Carlos Ferreira, reporting on the case, granted the appeal. He reaffirmed the STJ’s settled understanding that IPTU liability is shared among heirs until the estate is formally partitioned. This is consistent with the idea that heirs jointly possess the estate’s assets in co-ownership during the probate period.
Unless a formal agreement states otherwise, no heir may be singled out to bear the full cost of property taxes while the estate remains indivisible.
No Double Penalty for Exclusive Use
What makes this ruling particularly relevant is its treatment of overlapping obligations — namely, the relationship between exclusive occupation and financial compensation.
Since the lower court had already imposed a monthly indemnity on the occupying heir — to be deducted from her inheritance — the STJ concluded that requiring her to also pay the full IPTU created duplicative penalties for the same factual situation. This would unjustly benefit the non-occupying heir, who was already receiving rental compensation, and now would also be spared her share of the taxes.
Such a scenario, the Court reasoned, would violate the principle of equitable distribution of inheritance and result in unjust enrichment.
Prior Rulings and Notable Exceptions
Justice Ferreira clarified that in past decisions, the STJ has allowed the deduction of property expenses like IPTU from the inheritance share of the occupying heir — but only when there is no separate compensation for exclusive use, or when the heirs expressly agree to this arrangement.
For instance, in REsp 1.704.528, the Court supported such deductions only in the absence of indemnity. This reinforces the idea that heirs cannot be penalized twice for the same use of property unless they voluntarily agree to that outcome.
Importance of Express Agreement
Another key aspect was the lack of any prior agreement on how to handle the IPTU. According to Article 22, VIII of Brazil’s Tenancy Law (Law No. 8.245/1991), tax liabilities like IPTU may be transferred to the occupier — but only with express contractual provision.
In this case, the absence of such an agreement meant that one heir could not unilaterally impose tax burdens on the other through court order, especially when compensation was already in place.
Final Takeaway: A Matter of Balance and Fairness
This ruling by Brazil’s STJ strengthens the principle that inheritance law must operate in harmony with tax law, particularly in cases involving shared estate assets. It confirms that tax obligations linked to estate property must be shared among all heirs while the estate remains undivided.
For lawyers handling probate, estate disputes, or real estate law, the decision sets a valuable precedent: compensation for exclusive use of property precludes the simultaneous assignment of full tax liability, unless all heirs agree otherwise.
It also highlights the need for well-drafted agreements during probate proceedings and encourages a cooperative approach to the management of indivisible assets.