According to article 940 of the Civil Code, donation is the contract under which a person, by free will and at the expense of their own assets, freely gives a thing or right, or assumes an obligation, for the benefit of another contracting party.
Unlike the sale to children or grandchildren, where parents and grandparents cannot sell to children or grandchildren if the other children or grandchildren do not accept the sale, the law, in the case of donation, does not provide for the need to obtain the consent of the descendants. Accordingly, ownership of the donated property is the consequence of this free disposal contract, as of the date it is concluded.
However, this transfer does not prevent the donee(s)-descendant(s) of the donor from having to return to the donor\u2019s estate, for equitable distribution, the assets or values received as a donation, so that they may be included in the ascendant\u2019s succession – this is called collation, an element of succession law based on the social significance attributed to donations made during the donor\u2019s lifetime to presumptive legitimate heirs of the donor, considering them as nothing more than anticipations of the inheritance.
In other words, the law presumes that any donation made by parents during their lifetime to only one or some of their children is not intended to affect or harm the other children, harming them in relation to the beneficiaries of the donation. But that there was only an intention to help these children in a difficult moment of their lives, giving them a kind of advance payment of what they would inherit in the future, without affecting the duty of equality in this future sharing.
This conference (or duty of restitution) happens by imputing the donation value to the hereditary share (this value is the one the donated goods have at the date of the opening of succession), which is the rule; or by restituting the donated goods themselves, if there is an agreement among all heirs, which may lead to the reduction of the donation due to inofficiousness.
This will only be invalid if the act of donation expressly states that the donation was made according to the available share, i.e., based on the portion that can be freely disposed of. According to the available share means that the parents have exempted these assets from collation, intending to benefit a certain legitimate heir, and they are attributed to the available share of the author of the succession, without affecting its reduction due to inofficiousness.
In life or by will, parents can dispose of their own assets, if they do not affect the legitimate share, i.e., the share of assets that the administrator of the estate cannot dispose of, under penalty of such disposition being considered inofficious.<\/p>\n","protected":false},"excerpt":{"rendered":"
According to article 940 of the Civil Code, donation is the contract under which a person, by free will and at the expense of their own assets, freely gives a thing or right, or assumes an obligation, for the benefit of another contracting party. Unlike the sale to children or grandchildren, where parents and grandparents […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-696","post","type-post","status-publish","format-standard","hentry","category-sem-categoria"],"yoast_head":"\n