Renunciation and Assignment of Inheritance Rights: Complete Guide

The renunciation and assignment of inheritance rights require a public deed at a notary office, complying with spousal consent rules, taxation, and estate indivisibility.

Última atualização:

Por Equipe de Redação Notarial — Redação jurídica assistida por IA · 5º Tabelionato de Notas de Recife

Note: This content describes Brazilian notarial law.

This article answers

  • What documents are required to execute a public deed of abdicative renunciation of inheritance?
  • Does the renunciation of inheritance rights require the consent of the renunciant's spouse?
  • What is the difference between abdicative renunciation and assignment of inheritance rights?
  • Is it possible to transfer inheritance rights over a specific asset of the estate?
  • What taxes apply to the renunciation and assignment of inheritance rights?

---

In summary

  • The renunciation and assignment of inheritance rights require legal formalization through a public deed executed at a notary office (tabelionato de notas) or by a formal statement on record in a judicial probate proceeding Lei nº 10.406/2002 — Código Civil, art. 108.
  • Abdicative renunciation returns the heir's share to the general estate, benefiting all other co-heirs of the same class.
  • The assignment of inheritance rights (also called translative renunciation) transfers the share of the estate to a specific beneficiary, generating its own tax obligations.
  • By law, an inheritance is considered an indivisible real property asset until the estate division (partilha) takes place, which prevents the isolated sale of a specific asset without court authorization.

---

What documents are required to execute a public deed of abdicative renunciation of inheritance?

To execute a public deed of abdicative renunciation at a notary office (tabelionato de notas), you must present personal identification documents and updated civil status certificates of the interested parties. The notarial procedure formalizes the refusal of the right to the opened succession Lei nº 10.406/2002 — Código Civil, art. 1º.784.

The complete list of required documents includes:

  • Official photo ID (RG, CNH, or valid professional ID card) and CPF (Individual Taxpayer Registry) of the renunciant heir;
  • Birth certificate (if single) or updated marriage certificate (issued within the last 90 days);
  • Death certificate of the deceased (autor da herança);
  • Updated proof of residence of the renunciant;
  • Personal ID documents and CPF of the spouse, when spousal consent is required by the marital property regime.

The notary public verifies the civil capacity of the declarant and confirms whether the right to succession was already transmitted by the death Lei nº 10.406/2002 — Código Civil, art. 215. Renunciation of the inheritance of a living person is not permitted.

You can check more details regarding the organization of estate assets in the guide on documents required for out-of-court probate and assignment of inheritance rights.

---

Yes, the renunciation and assignment of inheritance rights depend on the spouse's consent in the vast majority of cases. The Código Civil (Brazilian Civil Code) establishes that the right to an open succession is considered real property for legal purposes, regardless of the assets that make up the estate.

The requirement of spousal consent (referred to as outorga uxória or marital) varies according to the marital property regime adopted in the marriage:

  • Partial community of property (comunhão parcial de bens): requires authorization from the spouse;
  • Universal community of property (comunhão universal de bens): requires authorization from the spouse;
  • Final participation in acquests (participação final nos meatos): requires authorization, unless a clause in a prenuptial agreement states otherwise;
  • Absolute separation of property (separação absoluta de bens): does not require spousal authorization.

If the person is married under a regime that requires spousal consent and the spouse does not sign the public deed, the act becomes subject to annulment due to a validity defect Lei nº 10.406/2002 — Código Civil, art. 166.

---

What is the difference between abdicative renunciation and assignment of inheritance rights?

The fundamental difference in the renunciation and assignment of inheritance rights lies in the destination of the assets and whether a direct transfer of property to someone occurs.

In abdicative renunciation (or pure renunciation), you simply refuse your status as an heir. Your share returns to the general estate (monte mor) and is redistributed among the other heirs of the same class. The renunciant does not choose who will receive their share of the inheritance.

In the assignment of inheritance rights (sometimes referred to in practice as translative renunciation), you accept the inheritance and, in the same act, transfer your inheritance share to a specific person. This person can be another heir or a third party outside the succession. You can deepen your legal analysis by reading about Assignment of Inheritance Rights: Rules, Restrictive Clauses, and Usufruct.

The following table demonstrates the main operational differences:

| Feature | Abdicative Renunciation | Assignment of Inheritance Rights |

| :--- | :--- | :--- |

| Destination of the share | Returns to the general estate | Goes to a specific beneficiary |

| Choice of beneficiary | Not allowed | Allowed |

| Additional taxation | No tax on the act of renunciating | ITCMD (gift tax) or ITBI (transfer tax) applies |

| Formal requirement | Public deed or formal statement in court records | Mandatory public deed |

---

Is it possible to transfer inheritance rights over a specific asset of the estate?

It is not possible to assign an individualized asset of the inheritance without prior authorization from the competent judge in the probate proceeding. As long as the estate division (partilha) has not occurred, the inheritance is considered an indivisible whole, belonging to all heirs under forced co-ownership (condomínio forçado).

When an heir intends to carry out the renunciation and assignment of inheritance rights regarding a specific house, land plot, or vehicle, the law considers such a sale or gift ineffective against the other co-heirs.

There are two valid ways to solve this situation:

  • Assignment of undivided share (fração ideal): The heir assigns their generic percentage of the whole estate (for example, 25% of the entire estate);
  • Judicial authorization (alvará judicial): The heirs request authorization from the probate judge for the estate (espólio) to alienate the specific asset before the completion of the estate division.

---

What taxes apply to the renunciation and assignment of inheritance rights?

Taxation applicable to the renunciation and assignment of inheritance rights depends on how the statement of intent is structured in the public deed.

In the case of pure abdicative renunciation, the renunciant does not pay transfer tax on their refusal, because the law understands that they never incorporated the assets into their personal patrimony. The remaining heirs pay the State Estate and Gift Tax (Imposto sobre Transmissão Causa Mortis e Doação - ITCMD) on their recalculated shares according to the tax rates of the State Department of Revenue (Secretaria da Fazenda Estadual).

In the assignment of inheritance rights, two distinct taxable events occur:

  • First taxable event: The ITCMD due upon the death of the deceased (transmission by saisine, which is the automatic transfer rule at the moment of death) Lei nº 10.406/2002 — Código Civil, art. 1º.784;
  • Second taxable event:
  • If the assignment is gratuitous (gift of share): a second ITCMD is levied on the transfer between assignor and assignee;
  • If the assignment is onerous (sale of share): the Municipal Real Estate Transfer Tax (Imposto sobre Transmissão de Bens Imóveis - ITBI) applies, collected by the municipality where the real estate property is located.

Before formalizing the act, you can review the complete calculation procedure in Out-of-Court Probate: Complete Guide, Required Documents, and Deadlines.

---

Document checklist

Use the list below to check the necessary material before scheduling the act at the Notary Office (Tabelionato de Notas):

  • [ ] Valid RG (Identity Card) and CPF of the renunciant or assignor heir;
  • [ ] Updated Birth Certificate (if single) or Marriage Certificate (with annotations, if applicable);
  • [ ] ID document and CPF of the spouse of the renunciant or assignor;
  • [ ] Death Certificate of the deceased (autor da herança);
  • [ ] Current proof of residence of the heir;
  • [ ] Personal documents of the assignee (cessionário, the person receiving the rights, in the case of assignment);
  • [ ] Updated land registry certificate (matrícula) of the real estate properties comprising the estate;
  • [ ] State/municipal tax assessment or payment receipt (when applicable).

---

In practice

Case 1: Pure renunciation for family simplification

Two brothers and a sister inherited a rural property following the death of their father. The sister lives abroad and does not wish to manage or receive funds from the estate. She visited a notary office and signed a public deed of abdicative renunciation. Since the renunciation was pure and simple, her share returned to the total estate and was automatically divided between the two brothers without triggering a second gift tax.

Case 2: Onerous assignment of share between co-heirs

An heir owned a 33% inheritance share in a family home but needed immediate financial resources. He agreed with one of his brothers to sell that undivided share. Both went to the notary office to execute a public deed of onerous assignment of inheritance rights. The assignor heir received the agreed payment, and the assignee (the purchasing brother) assumed ownership of that share in the out-of-court probate proceeding Lei nº 13.105/2015 — Código de Processo Civil, art. 610, paying ITBI on the acquired portion.

---

Common errors

  • Drafting a private contract for renunciation or assignment: The law expressly requires a public deed executed at a notary office for the validity of the renunciation and assignment of inheritance rights Lei nº 10.406/2002 — Código Civil, art. 108. Private documents have no legal validity to transfer succession rights.
  • Signing the renunciation without spousal consent: Omitting the spouse's signature under mandatory property regimes renders the deed void and prevents completion of the probate.
  • Attempting to sell a specific asset of the deceased: Selling a specific house of the estate before partition without court authorization creates an ineffective document.
  • Confusing formal renunciation with informal waiver: Believing that verbal absence from the probate proceeding means waiving the asset. Renunciation requires a solemn and express act.
  • Forgetting double taxation in assignment: Being surprised by state or municipal tax costs due to not planning for the tax consequences of assigning rights.

---

  • **Lei nº 10.406/2002 (Código Civil - Brazilian Civil Code), art. 1º.784** — Establishes that the open succession transmits the inheritance immediately to the legitimate and testamentary heirs Lei nº 10.406/2002 — Código Civil, art. 1º.784. Check on Planalto.
  • **Lei nº 10.406/2002 (Código Civil - Brazilian Civil Code), art. 108** — Defines the mandatory nature of public deeds for legal transactions aimed at the creation, transfer, modification, or renunciation of real property rights over real estate Lei nº 10.406/2002 — Código Civil, art. 108.
  • **Lei nº 10.406/2002 (Código Civil - Brazilian Civil Code), art. 215** — Regulates the public trust and full proof provided by a public deed executed at a notary office Lei nº 10.406/2002 — Código Civil, art. 215.
  • **Lei nº 13.105/2015 (Código de Processo Civil - Brazilian Code of Civil Procedure), art. 610** — Governs the requirements for performing out-of-court probate and division of estate by public deed Lei nº 13.105/2015 — Código de Processo Civil, art. 610. See the full law on Planalto.
  • Lei nº 8.935/1994, art. 6º — Grants notary publics exclusive jurisdiction to legally formalize the will of parties in notarial acts Lei nº 8.935/1994, art. 6º.

---

Frequently asked questions

What documents are required to execute a public deed of abdicative renunciation of inheritance?

Official identity documents, CPF, updated birth or marriage certificate of the renunciant, death certificate of the deceased, and proof of address are required. If the renunciant is married under a regime requiring consent, the spouse's documents must also be presented.

Yes, spousal consent is required in most property regimes because inheritance is considered real property by statutory determination. The exception applies only to persons married under the absolute separation of property regime.

What is the difference between abdicative renunciation and assignment of inheritance rights?

Abdicative renunciation is pure and simple refusal, in which the heir gives up their share in favor of the estate without designating a beneficiary. The assignment of inheritance rights is the deliberate transfer of the inheritance share to a specific person, which may occur gratuitously or for valuable consideration.

Is it possible to transfer inheritance rights over a specific asset of the estate?

As a rule, inheritance is indivisible until partition, so assignment covers an undivided percentage share of the whole estate. Transferring an individualized asset requires prior court authorization from the probate judge.

What taxes apply to the renunciation and assignment of inheritance rights?

In abdicative renunciation, there is no transfer tax levied on the renunciant, as the right returns to the general estate. In the assignment of inheritance rights, double transmission occurs: ITCMD is due upon the opening of succession, and a new ITCMD (if assignment is gratuitous) or ITBI (if assignment is onerous) is levied.

---

Notarial Editorial Staff

Last legal review: May 24, 2024

Document version: 1.0

Informational content; does not replace legal advice for concrete cases.

Conteúdos relacionados

Próximos passos

Serviços do Tabelionato · Notarial Acts · Ver todos os conteúdos