Natural and Spurious Children in Brazilian Inheritance Law From Colony to Empire: A Methodological Essay

Abstract

This discussion takes its historical cue from a piece of recent urban folk wisdom in Brazil, one claiming that children born outside wedlock historically have enjoyed equal inheritance rights with their legitimate half-siblings. This notion attained wide circulation in the final years of the great debate over divorce that ended in 1976. As the defenders of thestatus quo, opponents of divorce usually failed to point out that Brazilian succession law had historically distinguished not just between individuals of legitimate and illegitimate birth but also among those of illegitimate birth. Of course, most Brazilians, like most North Americans, remained unaware of the vast differences prevailing between their two legal systems of inheritance. They usually assumed that the legal precept contained in the Statute of Merton (1235) still served as a rule of thumb for the Anglo-American experience: “Once a bastard, always a bastard.” On the other hand, what appealed to Brazilians' sense of fairness was the flexibility their national system of succession offered. The notion that inheritance rights should be restricted to those of legitimate birth was one they proudly rejected. In leaving the door open to the possibility that civil law could equip those born to unmarried parents with the potential for equal inheritance rights with legitimate heirs, Brazil's system of succession provided that so-called bastardy could be converted into legitimacy.