Deed of Donation with Usufruct Reservation: Guide & Rules
A deed of donation with usufruct reservation transfers bare ownership of property while maintaining possession and enjoyment with the donor until extinction of the in rem right.
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Context Note: This content describes Brazilian notary law and legal procedures.
Deed of Donation with Usufruct Reservation: Guide and Rules
This article answers
- What is a public deed of donation with usufruct reservation and how does it work?
- Does the donee mandatory have to sign the deed of donation?
- How does ITCMD tax collection and calculation work in a donation with usufruct?
- What documents are required for a donation with usufruct reservation?
- What happens to the property when the donor usufructuary passes away?
In summary
- A deed of donation with usufruct reservation (escritura de doação com reserva de usufruto) is the notarial act by which you transfer bare ownership (nua-propriedade) of real property to another person while reserving for yourself the in rem right to use and occupy the property.
- The effective transfer of the right requires the execution of the instrument at a notary public office (tabelionato de notas) and its subsequent registration at the competent real estate registry office (cartório de registro de imóveis).
- The tax levied on this transaction is the State Death and Donation Transfer Tax (Imposto sobre Transmissão Causa Mortis e Doação — ITCMD), whose rates and splitting rules depend on the legislation of the state where the property is located.
What is a public deed of donation with usufruct reservation and how does it work?
A deed of donation with usufruct reservation is a public instrument executed before a notary public office (tabelionato de notas) that formalizes lifetime estate planning Lei nº 8.935/1994, art. 1º. In this act, ownership of the real property is severed into two distinct rights: bare ownership (nua-propriedade) and usufruct (usufruto).
The donor transfers bare ownership to the donee while reserving the usufruct for themselves. The holder of the usufruct preserves the right to reside in, lease, and collect profits from the property throughout their lifetime or for a period specified in the deed. The bare owner holds legal title to the property; however, they cannot use or enjoy the property for the duration of the usufruct.
The execution of a deed of donation with usufruct reservation is an exclusive function of the notary public office Lei nº 8.935/1994, art. 6º. When the value of the property exceeds thirty times the highest minimum wage in the country, a public deed is an essential requirement for the validity of the legal transaction (Código Civil — Brazilian Civil Code, art. 108). To understand other modes of donation, consult our guide on lifetime property donation.
The transaction only generates in rem effects against third parties and transfers property title upon annotation and registration of the deed in the property's folio kept by the competent Real Estate Registry (Registro de Imóveis) (Código Civil, art. 1º,245).
Does the donee mandatory have to sign the deed of donation?
As a general rule, the donee must sign the deed of donation with usufruct reservation to express formal acceptance. Donation is a contract that is bilateral in consent and unilateral in obligation. It requires the meeting of the donor's intent to give and the donee's agreement to receive the property (Código Civil, art. 104).
Specific legal situations merit highlighting in the notarial act:
- Absolutely or relatively incapable donee: When a donation is unconditional (pure), without encumbrance or condition, the Código Civil waives express acceptance by the incapable person. However, in a deed of donation with usufruct reservation, due to the limitation on direct possession rights and conservation obligations, legal representatives (parents or guardians) must sign the instrument to safeguard legal validity.
- Donation with encumbrance: If the deed imposes obligations on the donee, formal acceptance becomes mandatory, under penalty of nullity of the act (Código Civil, art. 166).
- Absence of the donee at execution: The donee may be represented by an attorney-in-fact holding specific powers granted via a public power of attorney.
You can check further details regarding property restrictions and guarantees in the article on deeds of donation and restrictive clauses.
How does ITCMD tax collection and calculation work in a donation with usufruct?
A deed of donation with usufruct reservation is subject to the State Death and Donation Transfer Tax (Imposto sobre Transmissão Causa Mortis e Doação — ITCMD), a tax governed by state legislation. The calculation is based on the fair market value (valor venal) of the property determined by the municipality or the state revenue authority.
Most state laws adopt a split tax base calculation for donations with reserved usufruct:
- **Bare ownership (nua-propriedade):** Customarily corresponds to two-thirds (2/3) of the property's assessed market value. The ITCMD on this portion is collected at the time the public deed is executed.
- **Usufruct reservation (reserva de usufruto):** Customarily equals one-third (1/3) of the assessed value. In several states, the tax attributable to the usufruct is exempt or its collection is deferred until the consolidation of full ownership.
Each state has its own legislation setting tax rates and collection points. Approval of the tax assessment slip and proof of settlement or exemption before the State Department of Revenue are mandatory prerequisites for the notary public to execute the deed of donation with usufruct reservation Lei nº 10.406/2002 — Código Civil, art. 215.
You can examine the tax structure in detail in our article on donation with usufruct reservation and planning.
What documents are required for a donation with usufruct reservation?
To execute a deed of donation with usufruct reservation, you must submit complete documentation for all parties involved and for the real property. This documentation ensures the legal capacity of the parties and the legal availability of the asset (Provimento CNJ nº 149/2023, Book II, issued by the National Council of Justice — Conselho Nacional de Justiça).
Document verification by the notary public office prevents future legal challenges and guarantees full legal efficacy for the transaction (Provimento CNJ nº 149/2023, Book I). Generally, the required documents fall into three categories:
- Personal identification of donor and donee: Official government photo ID (RG or CNH driver's license), taxpayer ID (CPF), proof of residence, and an updated civil status certificate.
- Urban or rural property documents: Title certificate showing no encumbrances or in rem actions (certidão de propriedade com ônus e ações reipsecutórias) issued by the Real Estate Registry within the last 30 days, municipal tax clearance certificate (IPTU), and property tax roll extract.
- Tax documents: ITCMD tax declaration, paid tax collection slip or tax relief/exemption certificate issued by the state revenue authority.
To consult updated national legislation, access the consolidated text of the Código Civil on the official government portal.
What happens to the property when the donor usufructuary passes away?
Upon the death of the donor usufructuary, the usufruct is extinguished. Death terminates the legal encumbrance encumbering the asset, allowing the bare owner to consolidate full, unrestricted ownership of the property.
The extinction of the usufruct does not occur automatically on the property registry. The interested party must follow an administrative procedure at the competent registry office:
| Step | Responsible Party | Authority Action and Function |
| :--- | :--- | :--- |
| 1. Execution of Donation | Notary Public Office (Tabelionato de Notas) | Executes the deed of donation with usufruct reservation, records the intent of the parties, and verifies tax compliance Lei nº 8.935/1994, art. 6º. |
| 2. Transfer of Title | Real Estate Registry (Registro de Imóveis) | Registers the donation on the property folio, establishing usufruct in favor of the donor and bare ownership in favor of the donee (Código Civil, art. 1º,245). |
| 3. Extinction by Death | Real Estate Registry (Registro de Imóveis) | Annotates (averba) the usufructuary's death certificate on the property folio to cancel the usufruct and consolidate full ownership. |
You can review extrajudicial guidelines on the National Council of Justice Portal and check integration rules under the Public Registries Electronic System (Sistema Eletrônico dos Registros Públicos — SERP) Lei nº 14.382/2022, art. 3º.
Document checklist
Use the list below to check your documentation before appearing at the notary office to execute your deed of donation with usufruct reservation:
- [ ] Official government photo ID (RG or CNH) and CPF tax ID of donor and donee;
- [ ] Updated birth or marriage certificate of all parties (if married, spouse's photo ID and CPF);
- [ ] Property title certificate (certidão de matrícula) with encumbrance clearance, issued by the competent Real Estate Registry within the last 30 days;
- [ ] Municipal tax clearance certificate (for urban property) or DITR tax return and CCIR rural registration certificate (for rural property);
- [ ] IPTU property tax bill showing the property's current assessed market value;
- [ ] ITCMD tax assessment sheet accompanied by proof of payment or tax exemption certificate.
In practice
Case 1: Estate planning between parents and children
João and Maria decided to transfer the family's sole apartment to their daughter Helena as an advance on her compulsory inheritance share (legítima). To ensure guaranteed housing for the rest of their lives, they appeared at the notary public office and requested a deed of donation with usufruct reservation. Helena signed the deed accepting bare ownership. After collecting ITCMD taxes calculated on 2/3 of the asset's assessed value, the instrument was registered at the Real Estate Registry. The parents continue to reside in the property with full legal security.
Case 2: Cancellation of usufruct after death
Years after receiving bare ownership of a residential home via a deed of donation with usufruct reservation, Lucas faced the death of his father, who held the usufruct. To sell the property to a third party, Lucas obtained an updated death certificate and presented it directly to the Real Estate Registry holding jurisdiction over the property. The registrar annotated the cancellation of the usufruct on the property folio, rendering Lucas the sole owner of full title.
Common mistakes
- Believing the deed transfers ownership without registration: A deed of donation with usufruct reservation executed at a notary public office formalizes legal intent, but property ownership is only transferred when the instrument is registered on the property folio at the Real Estate Registry.
- Donating all assets without retaining minimum support: Brazilian law prohibits donating all of one's assets without reserving sufficient property or income for the donor's livelihood.
- Exceeding the compulsory share of necessary heirs: A donation cannot exceed the donor's available half of estate assets if necessary heirs exist (children, parents, surviving spouse), under penalty of nullity regarding the excess portion.
- Failing to pay the ITCMD tax before execution: The notary public is legally accountable for auditing tax compliance and cannot execute the deed without presentation of proof of tax payment or exemption.
Legal basis
- Lei nº 10.406/2002 (Código Civil), art. 108 — Mandates a public deed for transactions transferring real property rights exceeding thirty times the national minimum wage. https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm
- Lei nº 10.406/2002 (Código Civil), art. 1º,245 — Establishes that inter vivos transfer of real property ownership occurs through registration of the instrument at the Real Estate Registry. https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm
- Lei nº 8.935/1994 (Notarial and Registration Services Law), art. 1º — Defines notarial and registration services as designed to guarantee publicity, authenticity, security, and efficacy of legal transactions. https://www.planalto.gov.br/ccivil_03/leis/l8935.htm
- Lei nº 8.935/1994, art. 6º — Outlines the exclusive authority of notary publics to draft deeds and public instruments. https://www.planalto.gov.br/ccivil_03/leis/l8935.htm
- Provimento CNJ nº 149/2023, Book II — Consolidates national standards applicable to notary and registry services issued by the National Council of Justice. https://atos.cnj.jus.br/
Frequently asked questions
What is a public deed of donation with usufruct reservation and how does it work?
It is a notarial instrument executed at a notary public office where a property owner donates real estate to a third party while reserving for themselves the in rem right to use and reside in the asset. The donee receives bare ownership (nua-propriedade), while the donor retains usufruct for life or for a specified term.
Does the donee mandatory have to sign the deed of donation?
The general rule requires the donee's acceptance in the deed of donation with usufruct reservation to complete the legal transaction. While pure and simple donations to incapable individuals presume acceptance, a donation reserving usufruct necessitates signature to manifest consent to the deed's specific clauses and obligations.
How does ITCMD tax collection and calculation work in a donation with usufruct?
ITCMD is the state tax payable on this transaction. Generally, state law permits splitting the tax assessment, levying one portion on bare ownership at execution and the remainder upon the termination of the usufruct.
What documents are required for a donation with usufruct reservation?
Required documents include photo identification of all parties, updated civil status certificates, title and encumbrance certificates for the property, municipal tax clearance certificates, and the ITCMD tax assessment sheet duly paid or exempted by the State Department of Revenue.
What happens to the property when the donor usufructuary passes away?
Upon the usufructuary's death, the usufruct is extinguished. The bare owner must submit the death certificate to the Real Estate Registry to annotate the cancellation of the usufruct on the property folio, thereby consolidating full ownership.
Next steps
- Gather personal identification documents and property records outlined in our checklist.
- Request calculation and issuance of the ITCMD tax assessment slip from the competent State Department of Revenue.
- Submit documentation to the notary public office for preliminary legal review and to schedule execution.
- After signing the deed of donation with usufruct reservation, obtain certified copies (traslado) of the deed and present them to the Real Estate Registry for registration on the property folio.
Contact the notary office
If you have questions on how to structure property donation with full legal security, the 5th Notary Public Office of Recife (5º Tabelionato de Notas do Recife) is available to provide clear and impartial guidance. Present your documents to our notarial team to receive appropriate service and protect your autonomous intent.
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Notarial Editorial Team of the 5th Notary Public Office of Recife
Publication date: September 19, 2026
Date of last legal review: September 19, 2026 — Version 1.0
Informational content reviewed within the last 12 months, prepared based on Brazilian federal legislation in force on the publication date, without replacing specialized legal advice for specific cases.