Wealth and succession planning under Constitutional Amendment 132

Constitutional Amendment 132/2023, known for reforming consumption taxation, had a direct effect on succession planning. The new wording of art. 155, paragraph 1, of the Constitution made progressive rates mandatory for the estate and gift tax according to the value transferred, and shifted jurisdiction, in foreign probate cases and in successions involving movable assets, to the state of domicile of the deceased or of the donee.

The ceiling of the tax remains at eight percent under Resolution 9/1992 of the Federal Senate, but mandatory progressivity tends to push states that currently apply reduced flat rates towards higher brackets. This normative scenario gives concrete economic value to the organized anticipation of succession.

The available instruments

A gift with reservation of usufruct transfers bare ownership to the successors while the donor retains the powers of use, enjoyment and administration, under arts. 1,390 et seq. of the Civil Code, usually accompanied by reversion, inalienability and incommunicability clauses.

The family holding company concentrates the estate under a corporate structure with its own governance rules, with a shareholders agreement regulating management, transfer of interests and the entry of spouses and heirs. The contribution of assets to capital follows art. 23 of Law 9,249/1995, which allows the transfer at the value stated in the tax return or at market value, and the constitutional immunity from the real estate transfer tax on capital contributions, under art. 156, paragraph 2, I, of the Constitution, whose scope was delimited by the Brazilian Supreme Court in Extraordinary Appeal 796,376/SC, general repercussion Theme 796, decided on August 5, 2020, holding that the immunity does not reach the portion of the asset value exceeding the capital to be paid in.

The will remains the central instrument for the disposable share. Arts. 1,846 and 1,848 of the Civil Code reserve half of the estate to the necessary heirs and make restrictive clauses over the forced share conditional on a declared just cause. Life insurance, under art. 794 of the Civil Code, does not form part of the estate and is an efficient liquidity mechanism for the payment of the transfer tax itself.

The window of opportunity and its limits

Until the states enact the statutes implementing mandatory progressivity, transfers carried out under the current rules secure the present treatment. Planning must nonetheless be legally consistent. Structures devoid of purpose and substance, gifts encroaching on the forced share and simulated transactions expose those involved to civil invalidation and tax assessment. Proper design starts from a complete inventory of the estate, the matrimonial property regime and the actual family situation, and is implemented through acts formalized with documentary rigor.

This article is for general information only and does not constitute legal advice. For guidance on specific situations, please contact our team at contato@gotlibrocha.com.br.