It is known that unforeseen events, as the name suggests, are things that are not planned. But is there any way to guarantee yourself, in the midst of a negative surprise of everyday life? The answer is simple: insurance.
From the most specific to the most general hypotheses, life insurance is the most common. When talking about this type of insurance, the vast majority of people immediately think of death. However, this modality is much broader, it seems, covering, for example, serious illnesses, disability, and even a temporary absence from work.
Before going into the matter itself, it is of great value to explain the individuals involved in this legal relationship. Thus, the insurer is the entity legally authorized for the purpose of insurance. On the other hand, the one who contracts the eye insurance, we call the insured. In addition, the indemnity corresponds to the value of the insured capital.
The beneficiary is the individual or legal entity designated to receive compensation in the event of a claim.
Thus, depending on the modality that the life insurance seeks to guarantee, the beneficiary will be the contracting party itself or people indicated by the latter. From this information, a great question arises: “Who can be a beneficiary of life insurance?”
The legal diploma competent to answer this question is Law nº 10.406/02, the Civil Code. In summary, life insurance is a contract in which the insurer undertakes to pay the indemnity, guaranteeing the claim of the insured in relation to his beneficiary.
Unlike a will, for example, where the testator owes obedience to the legitimate and his necessary heirs, in life insurance, the insured has the prerogative to freely choose his beneficiary, regardless of whether or not he is an heir, as well as any other imposition.
Art. 789. In personal insurance, the insured capital is freely stipulated by the proponent, who may contract more than one insurance on the same interest with the same or different insurers.
In addition, it is worth noting that, with regard to life insurance, there is nothing to talk about inofficial donation. It is provided in art. 549 of the Civil Code, this institute concerns the will. As stated earlier, current legislation determines that life insurance does not have an inheritance status. Thus, for all legal purposes, there is no claim of unofficial donation in the insurance, as it is not incorporated into the insured’s inheritance assets.
Art. 549. The donation is also void in terms of the part that exceeds that which the donor, at the time of the liberality, could dispose of in a will.
Thus, if the insured chooses to benefit a non-heir, his successors are prevented from requesting compensation in court. This impediment is justified by article 794 of the aforementioned code since, for all legal purposes, life insurance is not considered an inheritance.
It is worth noting that, in the event of the death of one of the beneficiaries of the insurance, its corresponding share will be distributed among the others. For example, if a parent indicates a guarantor in the contract, two children, and one of them dies, compensation will be granted in favor of the surviving beneficiary.
In addition, it is important to mention the possibility of indicating a pubescent minor as a beneficiary. If in the event of the claim, the civil liability has not yet been acquired, the amount of the indemnity will be deposited in court until it reaches the legal age of majority.
Otherwise, if the insured does not determine a beneficiary or, for some reason, his will cannot be satisfied, the indemnity will be granted in accordance with the order of hereditary vocation.
It is called the order of hereditary vocation, the sequence of which the heirs are called to the succession. This sequence is set out in art. 1829, of the Civil Code. It is worth mentioning that, with regard to inheritance law, only the surviving spouse is recognized if, at the time of the other’s death, they were not legally separated.
According to art. 792, of the Civil Code, the indemnity will be divided between the heirs of the insured, being 50% owed to the spouse or partner and the remainder to the other successors.
It is important to emphasize that, as it is not an inheritance, the property regime does not influence the granting of compensation. Therefore, if there is a surviving spouse or partner, as long as they are not legally separated, half of the indemnity will be due to the latter.
Also, according to the aforementioned article, if the insured does not have heirs, compensation will be granted to the person who proves that the death of the insured deprived him of the necessary means for subsistence. In the absence of this, the indemnification will be up to the Union.
As every rule has an exception, this is no different. Even though there is no legal impediment regarding the indication of beneficiaries of life insurance, the jurisprudence has understood that the indication of a concubine is null in order to protect the family entity.
Article 1727 of the Civil Code defines concubinage as the eventual relationships between individuals prevented from marrying. Roughly speaking, they are extramarital relationships.
The peaceful jurisprudence is based on article 550 c/c 793 of the Civil Code:
Art. 550. The donation of the adulterous spouse to his accomplice may be annulled by the other spouse, or by his necessary heirs, up to two years after the conjugal partnership has been dissolved.
Art. 793. The institution of the partner as the beneficiary is valid if, at the time of the contract, the insured was judicially separated or was already separated, in fact.
RESOURCE. 1. Capital stipulated in the life insurance contract is not to be confused with the inheritance. Article 794 of the CC. 2. Freedom to contract, from which the general rule is extracted, which guarantees freedom to indicate any person as a beneficiary. 3. Limiting exceptions based on art. 550 and 793 of the CC, which prohibits the indication of the concubine as a beneficiary.Protection of the family entity.
Briefly, life insurance has numerous advantages; among them, we have the free disposition of will; the stipulated capital is not subject to debt; non-incidence of income tax and ITMCD.
In this way, in view of what is exposed in this article, unlike the assets and liabilities of a person who dies, the insurance is not incorporated into the estate because it does not have inheritance status.
Furthermore, with the intention of having an amount available to a non-heir or to just one heir, life insurance is, without a doubt, the best solution.
