“A civil law, more specifically article 2091 of the Civil Code, understands that, as long as the inheritance is undivided, the rights relating to it “can only be exercised jointly by all the heirs or against all the heirs”.
Said that, the heir who uses the property and is preventing the sharing is not the holder of a concrete right over that asset or any other assets of the inheritance. Only after sharing will you be able to have any rights, if this asset were awarded to you, given that this right is retroactive to the moment the succession was opened, as set out in article 2119 of the Civil Code.
Until sharing, the inheritance and, necessarily, the assets that constitute it are administered by the head of the couple (according to article 2079 of the Civil Code), therefore the head of the couple must be in possession of such property and manage it.
Like this, If the heir does not voluntarily hand over the property, and uses it as if it were his exclusive property, legal action may be taken against him, in order to claim ownership (of the undivided inheritance) and restore possession to the head of the couple..”
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Dantas Rodrigues has been a lawyer since 1993 and partner at Dantas Rodrigues & Associados. He has also been a Law professor at Polytechnic Higher Education since 1995.
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Tags: heirs leave house preventing sharing
