The term de cujus, derived from the Latin phrase de cujus successione agitur, designates the author of the inheritance, whose death triggers the opening of succession. It is a central concept in Civil Law, specifically in Succession Law, serving as the objective reference point for the transmission of assets and the determination of succession legitimacy.
Concept and Foundation
The expression de cujus is an abbreviation of the Latin maxim is de cujus successione agitur, which means "he whose succession is being discussed." Legally, the figure of the de cujus defines the deceased subject whose assets, rights, and obligations are transmitted to legitimate or testamentary successors at the moment of death.
The legal nature of this institution is linked to the principle of saisine, codified in Article 1,784 of the 2002 Civil Code. By virtue of this principle, the death of the de cujus immediately operates the transfer of possession and ownership of the inheritance to the heirs, regardless of any formal or judicial act, providing legal certainty to the continuity of patrimonial relations.
Historical Origin and Evolution
The institution finds its roots in Roman Law, where succession was viewed as the continuation of the deceased's personality. Doctrinal evolution, passing through Germanic Law and consolidating in the Napoleonic Code of 1804, influenced the Brazilian legal system. In Brazil, the 1916 Civil Code and, subsequently, the 2002 Code, maintained the Romanist tradition, although mitigated by the protection of the succession rights of necessary heirs (Art. 1,845, CC).
Legal Provision and Framework
The Brazilian legal system does not use the term de cujus in the text of the law, preferring the designation "author of the inheritance" or "deceased." However, doctrine and jurisprudence adopt the term as an indispensable technical category. The normative foundation is found in:
- Civil Code, Art. 1,784: Establishes the opening of succession at the moment of the de cujus's death.
- Civil Procedure Code, Art. 611 et seq.: Regulate the inventory and partition procedure, where the figure of the deceased is the passive party of the procedural relationship (represented by the estate).
- Federal Constitution, Art. 5, XXX: Guarantees the right of inheritance, presupposing the existence of the de cujus as the original holder of the assets.
Practical Application and Jurisprudence
Current jurisprudence, notably in the Superior Court of Justice (STJ), consolidates the understanding that the de cujus, after the opening of succession, loses legal personality, being replaced by the estate (espólio). The estate, although devoid of full legal personality, holds procedural capacity to sue and be sued, pursuant to Art. 75, VII, of the CPC.
Recently, the STJ has debated the legitimacy of the estate in actions of a strictly personal nature. In several rulings (e.g., REsp 1,875,051), the Court reaffirms that, as the de cujus was the holder of the right, the estate has the legitimacy to claim moral and material damages resulting from violations suffered by the deceased, consolidating the transmission of the indemnity claim to the heirs.
Doctrinal Divergences and Related Principles
A point of divergence lies in the nature of the estate vis-à-vis the figure of the de cujus. Part of the doctrine (such as Maria Berenice Dias) argues that the estate is a universality of assets, while another school of thought associates it with a patrimonial mass with restricted judicial personality. Another relevant debate is the effectiveness of the renunciation of inheritance regarding debts left by the de cujus, where the principle of limited liability to the strength of the inheritance (Art. 1,792, CC) protects heirs from being liable beyond the share received.
Contemporary Relevance
In the current scenario, the figure of the de cujus gains complexity with digital succession. Intangible assets, crypto-assets, and social media profiles now form part of the deceased's estate, requiring the inventory to include the transmission of these assets. Jurisprudence has been adapting to ensure that the succession of the de cujus encompasses the totality of the modern patrimonial spectrum, while respecting, however, ethical and post-mortem privacy limits.
Legal and Jurisprudential References
- BRAZIL. Law No. 10,406, of January 10, 2002. Establishes the Civil Code.
- BRAZIL. Law No. 13,105, of March 16, 2015. Civil Procedure Code.
- BRAZIL. Superior Court of Justice. Special Appeal No. 1,875,051/RS. Rapporteur: Minister Marco Aurélio Bellizze. Third Panel. Judged in 2021.
- TARTUCE, Flávio. Civil Law: Succession Law. 14th ed. Rio de Janeiro: Forense, 2023.
- LÔBO, Paulo. Civil Law: Successions. 7th ed. São Paulo: Saraiva, 2023.
