O casamento e a união estável no paradigma instituído pelo Estado Democrático de Direito: perspectivas constitucionais do direito sucessório

Abstract

From the anthropological-historical context of the family relations formation in Brazil, approaches a discussion about the adequacy of the protection of constitutional legislation under spousal inheritance and stable mate in relation to the constitution of 1988. Having as general parameters for the study the theoretical boundaries of the Secular State and Democratic State seeks to hermeneutical-philosophical interpretation of the legal provisions in order to adapt them to the constitutional dictates. Therefore, begins with the verification of historical evolution in the constitution and legal conception of family entities from the influence of religion, particularly of Christianity, as well as the reflections in this current conception of family and marriage in Brazil, with an analysis major remnants of the Christian religion presents today the concept of family by doctrine and jurisprudence of the legislature and attachment to religious ideals against the recognition of Brazil as a secular state by the Constitution of 1988. The following is an attempted interpretation, from the philosophical hermeneutics, the provisions of the Federal Constitution, in which it was found that is not equipped with full implementation in inheritance law concerning the surviving spouse and companion, both for constitutional legislation, as case law. It was observed that the application of the provisions of the Civil Code, from the conception of the constitutional issue, the case law in cases of succession to the surviving spouse or partner is not consonant with the paradigm established by a democratic state. It was noted the need for wider application of legislation concerning the surviving spouse to partner on equal treatment, he excelled as a constituent. Finally, he warned up to the necessary modification of formal civil legislation to adapt it to the constitutional dictates.