Paternity Investigation and Inheritance Claim in International Succession: A Critical Analysis of Brazilian Jurisdiction

Patricia Novais Calmon Attorney OAB-ES, OAB-SP, OAB-DF. Master's Degree. Professor. Author of various legal books and articles. President of the Elderly Commission of IBDFAM-ES

The Superior Court of Justice (STJ), in REsp n. 2.030.897/DF, brings to light important questions related to the limits of Brazilian jurisdiction in paternity investigation actions filed by foreigners not domiciled in Brazil. The analyzed case, involving a request for posthumous recognition of paternity combined with an inheritance claim, culminated in the dismissal of Brazilian jurisdiction to assess the filial relationship, as it was understood that the plaintiff, a foreigner with temporary domicile in Brazil, failed to prove his effective residence or definitive intention to remain in the national territory.

This decision prompts reflection on the adequacy of traditional criteria for establishing international jurisdiction in matters of personal status in the face of increasing transnational mobility. The relevance of the discussion expands when we consider that the recognition of the paternity relationship constitutes a preliminary issue to inheritance rights, whose jurisdiction unequivocally belongs to the Brazilian judicial authority when the deceased was domiciled in Brazil and the inherited assets are located here.

According to the STJ's understanding, the plaintiff did not demonstrate having established residence in Brazilian territory nor having the intention to reside here permanently, presenting only a proof of residence related to a credit card bill that was not even in his name. The Tribunal of Citizenship affirmed that there were no elements in the case file demonstrating his purpose to remain at the location indicated as residence, converting it into the center of his activities or legal relationships, nor documentation regarding a request for legal residence in Brazil, such as a temporary visa or residence authorization.

Based on these factual elements, the STJ concluded that the paternity investigation request made by a foreigner not domiciled in Brazil falls outside the limits of national jurisdiction. However, it recognized that, in the case of a deceased person domiciled in Brazil, it is exclusively within the jurisdiction of the Brazilian judicial authority, in matters of hereditary succession, to proceed with the division of assets located here, according to art. 23, II, of CPC/2015, in conjunction with art. 10 of LINDB.

The decision also recognized that the successive cumulation of claims may imply prejudiciality, with the recognition of inheritance rights theoretically dependent on proof of filiation. However, even in the absence of Brazilian jurisdiction over the paternity investigation claim, the court understood it to be possible to process and judge the inheritance claim by the national judicial authority, discussing, in the cause of action, the effective paternity of the deceased and the violation of hereditary rights.

In this context, discussing the formation of the paternity bond in Brazil when the probate proceedings are taking place in national territory does not represent mere technical-legal meticulousness, but a practical issue with direct implications for access to justice and procedural economy. The fragmentation of jurisdictional competencies, requiring the alleged child to first obtain recognition of paternity in their country of origin to later claim succession rights in Brazil, creates potentially insurmountable procedural obstacles for the exercise of fundamental rights, such as the recognition of biological ancestry and the right to inheritance.

It is important to highlight that there is no incidence of exclusive jurisdiction over the subject in the case under analysis, making the restriction of Brazilian jurisdiction questionable. The decision may represent a violation of the right to transnational access to justice, ignoring that the hypotheses of concurrent jurisdiction go beyond the mere question of the plaintiff's domicile.

Curiously, Article 21 of the CPC itself determines that concurrent international jurisdiction may exist in the case of the defendant's domicile, not the plaintiff's (it should be emphasized: the STJ vetoed access to Brazilian justice due to the absence of the plaintiff's domicile). As the author of the inheritance has died, his heirs would be the defendants. This interpretation further reinforces the competence of Brazilian jurisdiction in the case under analysis, as the heirs, as defendants, would be domiciled in Brazil.

The reasonableness of Brazilian jurisdiction is clear in a paternity investigation action combined with an inheritance claim, especially considering that the practical result of the decision would be the need for subsequent recognition of a foreign judgment for succession purposes in Brazil, generating unnecessary duplication of judicial procedures.

The STJ's decision, by fragmenting jurisdiction for understanding intrinsically related issues, ends up creating barriers to transnational access to justice. The alleged child, unable to obtain recognition of paternity in Brazil, would need to resort to the jurisdiction of their country of origin to subsequently request the homologation of this foreign decision in Brazil and only then claim their succession rights.

This tortuous procedural path represents a significant obstacle to the exercise of fundamental rights, especially considering that the recognition of paternity, as a matter of a person's status, represents a fundamental right. Furthermore, the right to inheritance has constitutional protection in the Brazilian legal system. Moreover, procedural economy is a basic principle of contemporary procedural law, and access to justice, including in its transnational dimension, constitutes an essential guarantee of the Democratic Rule of Law.

Therefore, it is concluded that the decision issued by the STJ reveals the need to rethink the traditional criteria for establishing international jurisdiction in cases involving recognition of paternity and succession rights. The restrictive interpretation adopted by the Superior Court, requiring the plaintiff's domicile in Brazil as a requirement for processing the paternity investigation action, contradicts not only the logic of the procedural system (which privileges the defendant's domicile) but also fundamental principles such as access to justice and procedural economy.

In a context of increasing transnational mobility and complexification of family relationships, international jurisdiction should be interpreted in a way that facilitates, rather than obstructs, the exercise of fundamental rights. The fragmented approach adopted by the STJ, separating intrinsically related issues (recognition of paternity and inheritance claim), creates unnecessary obstacles that may, in practice, make effective access to justice unfeasible for foreigners with legitimate succession ties in Brazil.

A more flexible and teleological application of the criteria for establishing international jurisdiction would allow the comprehensive processing of claims such as the one analyzed, simultaneously serving the principles of procedural economy, access to justice, and the effectiveness of judicial protection, without compromising national sovereignty or Brazilian public order.

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