O direito real de habitação e a vulnerabilização das mulheres na sucessão: entre o protecionismo legal e a realidade social

Abstract

This study presents an analysis of the right of habitation within Brazilian succession law, investigating its relevance as an instrument for protecting the housing of the surviving spouse or partner from a gender perspective. The research started from the observation that structural inequalities between men and women, which were built over centuries and are still deeply rooted in our society, such as the sexual division of labor and the concentration of care activities within the domestic sphere, are responsible for hindering women’s patrimonial accumulation and economic autonomy, which results in a condition of greater vulnerability for women in succession. In this context, the right of habitation is responsible for mitigating this gender inequality in the succession process by ensuring housing security after the dissolution of the marital bond due to death. Seeking to better understand the relationship between the right of habitation and the protection of women, the study examined the historical transformations of this institute in the Brazilian legal system, highlighting the changes until its consolidation as a mechanism of existential protection. Subsequently, female vulnerability in the general context and its reflection in succession were analyzed, emphasizing the socioeconomic factors that contribute to a position of greater patrimonial scarcity for women at the time of succession. Finally, some of the most recent transformations involving the institute were examined in the jurisprudential sphere, through the analysis of decisions of the Superior Court of Justice related to the possibility of relativization of the right of habitation, as well as in the legislative sphere, considering that proposals presented in the draft reform of the Civil Code represent a clear threat to the welfare character of the institute. It is concluded that such developments may indicate a tendency toward the mitigation of the right of habitation, which raises concerns regarding the preservation of its protective function and the possible impacts on female vulnerability in the field of succession. The research adopted a qualitative approach, developed through bibliographic review and documentary analysis.