The Federal Constitution organizes the country as a Federative Republic, formed by the unbreakable union of the States, Municipalities, and the Federal District. Each of these is competent to legislate on specific matters as determined by the Federal Constitution.
In general, matters of law concerning private clients usually fall within the Federal government’s legislative competence. When it comes to taxes, for example, the Federal Union is set by the Constitution as competent to tax income and capital gains. In addition to the Brazilian Constitution, Federal laws such as the Decree-Law No. 4,657/1942 (Law of Introduction to the Brazilian Law) and Law No. 10,406/2002 (Brazilian Civil Code) also rule on matters of international, family, succession, contractual, and corporate law, as well as other relevant topics, serving as the main legal ground for estate and succession planning in Brazil. Nonetheless, the States also have competence to rule on certain relevant matters, as inheritance and gift taxation.
It is also important to point out that, notwithstanding Brazil being a civil law country (i.e., Brazilian legal system is based on statutes rather than on case law), the Law No. 13,105/2015 (the Brazilian Civil Procedure Code) introduced some elements of common law to the local legal system and, as a result, State courts are bound by precedents ruled by both the Brazilian Supreme Court and the Superior Court of Justice over matters regulated by Federal law.
1 . Tax and wealth planning
1.1. National legislative and regulatory developments
Taxation of Brazilian individuals
Income Tax (IT) is a Federal tax levied on the economic or legal availability of income to a Brazilian tax resident individual (see Section 1.6 below for the definition of ‘tax resident’) on a worldwide basis, transferred or not to Brazil, on a monthly basis. Rates vary from 0% to 27.5% on regular income and 15% to 22.5% on capital gains.
Inheritance and Gift Tax (IGT) is a State tax levied on the transmission of assets upon inheritance or donation. Rates vary from 0% to 8% (São Paulo applies 4% and Rio de Janeiro 4% to 8%).
Taxation of foreign investors in Brazil
Foreign investors, as a rule, are subject to the withholding IT at rates varying from 15% to 22.5% on capital gains derived from the sale of assets and rights in Brazil (if the investor is resident in a tax haven jurisdiction, the applicable rate is 25%). Sale of shares in stock exchanges and regulated over-the-counter markets may be exempt. Dividends distributed by Brazilian companies are exempt.
Taxation of Brazilian tax residents on investments abroad
Capital gains (e.g., interest earned or positive exchange variation at the time of sale, redemption, or settlement of any financial assets) will be subject to IT (15% to 22.5%). Gains up to BRL 35,000.00 per month are exempt.
As a rule, there is no taxation of interest earned on investments or exchange rate variation on the disposal, redemption, or settlement of assets until the funds become available to the individual. There is no automatic taxation of foreign controlled companies. Therefore, if the investment is made by the individual through an offshore company, taxes will only be due upon:
- capital reduction (on the positive exchange rate variation if the investment origin is in BRL (15% to 22.5%), otherwise it is not taxed); or
- distribution of dividends (0% to 27.5%).
Redemption of interests in foreign investment funds will be subject to IT on capital gains (15% to 22.5%).
The trust’s characteristics shall be considered to define the legal nature of the amounts transferred by it to Brazilian residents and, therefore, the tax treatment (i.e., whether the transaction is deemed as a donation/inheritance, capital gains, or ordinary income). For instance, when a Brazilian resident transfers assets to an irrevocable trust, such transaction might be qualified as a gift, being subject to IGT — if such transaction is made at cost, IT should not be levied. Notwithstanding, recent tax rulings stated that:
- donations made by Brazilian residents to a trust should be subject to IT at 15% (or 25% if the trust is in a tax haven jurisdiction); and
- distributions from trusts should be subject to IT at 27.5%.
Both rulings are subject to strong criticism by practitioners.
On November 23, 2022, the Bill of Law No. 145/2022 (the “Trust Bill”) on the applicable law on trusts and the Brazilian tax consequences of transactions involving trusts was presented to the Brazilian House of Representatives (Câmara dos Deputados).
The Trust Bill provides:
- that trusts shall be governed by the law appointed in the trust deed or settlement, as well as by the rules set forth in any other trust documents (e.g., letter of wishes);
- that Brazilian courts do not have jurisdiction to process and judge lawsuits over trusts that have elected exclusive jurisdiction abroad;
- there would be no need for a probate proceeding with respect to the trusts’ assets (except where local laws governing the trust require otherwise);
- that assets transferred from the trust to the beneficiaries during the lifetime of the settlor shall be considered in the Brazilian probate proceeding relating to the assets of the deceased settlor for the confirmation of the compliance with applicable forced heirship rules — the penalty for violation of such rule is the forfeiture of such assets to the other legal heirs;
- for the differentiation between ‘Potential Beneficiary’ and ‘Effective Beneficiary’ — a Potential Beneficiary is the equivalent of a discretionary beneficiary as they do not have the right to claim distributions whereas the Effective Beneficiary would have the right to claim distributions from the trust;
- that there is no difference in treatment if the trust is revocable or irrevocable;
- IGT would not be levied on the transfer of assets and rights from settlor to trustee, but rather IT, if the transfer is made at market value of the assets and rights (if the transfer is made based on the acquisition cost, IT would not be levied);
- upon the change of the status of a Potential Beneficiary to an Effective Beneficiary, IGT is levied on the effective value of the trust’s assets and rights;
- on the transfer of assets and rights from trusts to the beneficiaries, IT would be levied at progressive tax rates of up to 27.5% or between 15% and 22.5%, as the case may be; and
- upon the transfer of Brazilian real estate directly acquired by the trust, the Transfer Tax on Immovable Properties (v.g., real estate) would also be levied, usually at tax rates between 2% to 4%.
In 2021, the Federal Government proposed fundamental changes to IT legislation through the Bill of Law No. 2,337/2021, which are now under discussion within Brazilian Senate. The main changes are:
- 15% IT on dividend distributions (currently exempt);
- taxation of local close-ended investment funds, which currently allows for tax deferral;
- CFC rules for individuals who control entities located in tax haven jurisdictions (profits would be subject to IT up to 27.5% at the end of the entity’s fiscal year);
- limitation on the ability to restructure foreign assets; and
- tax on the sale of Brazilian assets held indirectly by foreign companies.
Recently, there were several attempts to create a wealth tax, but none of them succeeded.
1.2. Local legislative and regulatory developments
Two bills of law are being discussed within the Legislative Assembly of São Paulo to amend the current local legislation on IGT:
- Bill of Law No. 1,315/2019 which proposes progressive tax rates from 3% to 8%, depending on the amount transferred upon death; and
- Bill of Law No. 250/2020 which aims to increase the tax assessment basis and change the treatment provided to donations encumbered with ‘usufruto’ (a legal type of lien set forth in the Brazilian Civil Code) by progressively increasing the tax rate up to 8%, depending on the amounts involved.
1.3. National case law developments
In 2021, the Brazilian Supreme Court recognized that the transfer of foreign assets by a deceased person to a Brazilian resident by succession should not trigger IGT when based on a State law, since the Brazilian Federal Constitution sets forth that the levy of such tax is a matter of Federal law. As no Federal law has been enacted, Brazilian States are not competent to assess IGT on such case. Thus, any State law providing for such assessment shall be declared unconstitutional.
More recently, in 2023, the Brazilian Supreme Court ruled that taxpayers with final judicial court decisions favourable to the non-payment of continuous collection taxes (e.g., IT) shall automatically lose such right in case a new judicial court decision ruling against it is issued by the Brazilian Supreme Court – in general repercussion or concentrated control of constitutionality (controle concentrado de constitucionalidade). In such event, the tax authorities would be entitled to collect the taxes due as from the calendar year following the date of publication of the new decision, or after 90 days as of the date of publication of such decision, depending on the type of tax.
1.4. Local case law developments
Local case law is not relevant as State Courts’ rulings over matters regulated by Federal law are always subject to the Brazilian Federal Courts.
1.5. Practice trends
Asset holding companies
Holding companies are commonly used in Brazil to hold family assets in Brazil and abroad. It is a tax efficient structure, especially for foreign companies as they can currently defer taxes. It also facilitates the management of the assets and the transfer to the next generation. Usufruct is usually involved in such planning alternative, allowing the company’s underlying assets to be passed along without giving rise to succession issues – in effect, the legal title to the share is transferred, but its political/economic rights may be reserved to its former holder while still living. Additionally, the family’s wishes and mutual agreements may also be consolidated into governance rules established through a shareholders’ agreement or by other corporate arrangements (e.g., issuance of ordinary/preferred shares).
There has been an increase in the number of Brazilian families relocating to other countries, motivated by job opportunities, family, and even the economic and political instability in Brazil. The relocation should be planned considering Brazilian laws as well as the laws of the jurisdiction of relocation, to ensure the move’s efficiency from corporate, tax, civil, and regulatory perspectives. Legal issues shall be addressed in advance by a proper plan of action, which may include the restructuring of the individual’s assets.
When verifying the tax residency, Brazilian tax authorities might consider not only if formal procedures have been complied with by the individual, but also the elements of connection with the deemed country of residency (see Section 1.6 Pandemic related developments, below). Therefore, during the pre-immigration planning, a detailed analysis of the individual’s wealth and family structure shall be conducted to identify the measures to be taken.
Motived by succession (see Section 2.5 Estate and trust administration: Practice Trends, below) and tax aspects (below), within the Brazilian insurance market, certain products are used for estate planning:
- Life insurance: If the Brazilian insured redeems the life insurance policy during lifetime, the amount shall be subject to IT (regular income: 0% to 27.5%, or capital gains: 15% to 22.5%). Death benefits and premium reimbursements are exempt from IT if paid directly by the insurance company to the beneficiary. IGT does not apply.
- Free Benefit Generating Life Insurance Plan (VGBL): It is a personal insurance with survival coverage plan, where IT levies on the income of the
- amount redeemed;
- value of the single payment; or
- amount received periodically, at regressive rates (35% to 10%) or progressive rates (up to 27.5%).
IGT does not apply as VGBL has the legal nature of an insurance (see below).
- Free Benefit Generating Plan (PGBL): It is a private pension plan (not an insurance). IT will levy on the amount redeemed at regressive rates (35% to 10%) or progressive rates (up to 27.5%). Premium payments are deductible for IT purposes up to 12% on the individual’s annual gross income. The assessment of IGT is controversial. Currently, the Brazilian Supreme Court (Extraordinary Appeal No. 1.363.013) is analyzing the constitutionality of certain dispositive of Law No. 7,174/2015 of State of Rio de Janeiro, which provides for the assessment of IGT over VGBL and PGBL. The discussion entails the analysis of the legal nature of both institutes and whether the receipt of resources by beneficiaries upon the contracting party’s demise shall be deemed as inheritance. Such a Court decision, when enacted, shall have great impact as the Federal Court recognized its general repercussion.
If inheritance rights over life insurance, VGBL, and PGBL are disputed, this can lead to its inclusion in probates and, consequently, subject to IGT (up to 8%).
1.6. Pandemic related developments
Brazilians who have returned to Brazil with definitive intent to stay after residing abroad, or foreigners that entered the country holding a permanent visa (as from the date of arrival) or a temporary visa (as from the date of residing for 183 days in Brazil), shall qualify as Brazilian tax residents. The “definitive intent” to stay in Brazil is normally analyzed by the local authorities on a case-by-case basis (family domicile, time spent in Brazil, employment relationships, real estate properties and leasing, bank accounts, place of voting registration, etc.). During the pandemic, due to flight restrictions, many Brazilians residing abroad may have spent more than 183 days in Brazil in a period of 365 days, which raises a red flag as tax authorities may use it as an argument to characterize a tax residency in Brazil.
2 . Estate and trust administration
2.1. National legislative and regulatory developments
Trusts in Brazil
Despite trusts often being used by Brazilian residents, Brazil is not a signatory to the Hague Convention on Trusts and there is no legal institute that perfectly corresponds to trusts within Brazilian laws. Bill of Law No. 4,758/2020, which is currently under discussions in the Congress, aims to introduce a “fiduciary agreement” in Brazil, a mechanism of asset segregation that resembles a trust. However, the bill only regulates civil matters and the tax treatment of such an institute was left aside. Substantial changes should be made to the bill to enable the new arrangement to work properly and succeed as an alternative succession planning viable in Brazil.
2.2. Local legislative and regulatory developments
Local legislation in Brazil is not relevant as estate and trust administration is not a matter for local State law.
2.3. National case law developments
Courts’ intervention in the administration of minors' assets by the surviving parent
Unless otherwise determined by last wills and testaments, parents have the right to manage the assets (including income) inherited by minors (aged 18 and under). Certain law provisions, however, enhance the judicial control over said inherited assets, such as those establishing that a judicial order shall be granted to dispose of immovable assets held by minors or to adopt measures exceeding what is considered mere administration. It is not uncommon to see Courts blocking assets transferred to minor heirs, even without legal provision, under the argument of protecting their interests. When in excess, such judicial control may lead to mismanagement of the property. To avoid such severe interference, the common practice is to include provisions for the administration of minors’ inheritance in last wills, or even to contribute the family’s assets to holding structures with proper governance rules.
2.4. Local case law developments
Local case law is not relevant as State Courts’ rulings over matters regulated by Federal law are always subject to the Brazilian Federal Courts.
2.5. Practice trends
Enduring power of attorney
The enduring power of attorney is not a valid instrument in Brazil and, once someone is incapacitated, any power vested by such individual, either via a private or public deed, shall be considered revoked and null. Representatives of an incapacitated person can only be elected through a Court proceeding. Brazilian Civil Procedure Code lists in order of priority who may be appointed by the Courts as legal guardian, starting with the spouse or companion in civil union, ascendants, and then descendants. However, as the Courts shall consider the individual under custody’s wishes and best interest, individuals often use public deeds to list their preferred persons and the reasons they should act as their legal guardian. Wishes concerning wealth management and health and life support may also be included. Although it is not legally binding, the deed serves as a guideline to the Courts.
Under Brazilian law, investment funds are organised as a pool of assets jointly owned by the fund’s interest holders as a condominium. Since in Brazil there are no legal structures similar to trusts and the law restricts the power of executors, investment funds have become a great option for individuals who wish to leave to next generations a well-structured and professionally managed entity with a pre-set of investment guidelines and governance. Additionally, investment fund’s interests are easier to evaluate for IGT purposes and transfer to successors, and the risk of long-term disputes related to asset distribution or management can be mitigated. However, receiving interest of investment funds can be a disadvantage if the beneficiary is resident in a less tax favourable jurisdiction for this type of entity, such as the United States.
As mentioned above, another trending option for succession planning in Brazil is a life insurance plan, as the insurance proceeds do not enter the probate procedure and the value is automatically transferred to the policy’s beneficiaries upon the insured’s death. Also, since payment of insurance proceeds is not deemed as inheritance, the insured is not bound by forced heirship rules when appointing beneficiaries. However, if the premium exceeds half of the insured’s estate (violating the share reserved to forced heirs (‘legítima’)), occasionally an heir might challenge the arrangement and succeed. Life insurance plans are a great option to leave more readily available funds to heirs to cover for succession or life expenses while distribution of the estate is not concluded.
2.6. Pandemic related developments
Last wills and testaments
Last wills and testaments are the main tools in local law for succession planning. Considering that Brazil was one of the most affected countries by the pandemic and people of all ages perished due to COVID-19, Brazilian individuals were confronted with the importance of succession planning, causing a rise in the execution of last wills and testaments. Likewise, the demand for more elaborate and complex dispositions became more recurrent, such as clauses regarding custody of minor heirs, administration of assets inherited by minors, indications of specific gifts, distributions per type of asset, etc.
Consequences of the lockdown include the higher number of divorces and disputes over child custody. According to the Brazilian Notarial College, December, 2020 stood out as the month with the highest number of divorces in Brazilian Registry Offices since January, 2007, when extrajudicial divorces were instituted in Brazil.
3 . Estate and trust litigation and controversy
3.1. National legislative and regulatory developments
In 2017, the Brazilian Supreme Court (Extraordinary Appeal No. 878.694) decided that surviving companions in civil union are subject to the same succession rules applicable to surviving spouses in marriage. The leading case, with recognized general repercussion (topic No. 809), has declared unconstitutional the article 1,790 of the Brazilian Civil Code, which grants to companions in civil union different inheritance rights from those granted to spouses by article 1,829 of the same law. Considering the practical importance and repercussions of such a decision, the Brazilian Supreme Court modulated the effects of said ruling by determining that it should only be applicable to judicial proceedings where a final decision has not been reached and extrajudicial partition proceedings in which a public deed has not been registered yet.
3.2. Local legislative and regulatory developments
Local legislation is not relevant in Brazilian estate and trust litigation as this is not a matter for local State law.
3.3. National case law developments
Disputes before Brazilian Courts over partition of foreign assets
Brazilian Federal Courts normally abstain from including or considering foreign assets in divorce or probate cases processed under Brazilian law, as the Courts decided that they have no jurisdiction to rule over the partition and distribution of assets located outside of Brazil (Brazilian Supreme Court, Extraordinary Appeal n. 99.230–8 of May 22, 1984, and Superior Court of Justice, Special Appeal n. 1.362.400 of April 28, 2015).
Local State Courts, however, sometimes do not follow such an understanding and consider that, although the partition should be exclusively based on Brazilian assets, it shall not disregard the value and partition of those assets located abroad, to guarantee fairness in the portions to be attributed to heirs. One recent decision from the São Paulo State Courts, dated as of February 2, 2022, reasoned that the absence of foreign assets would compromise the egalitarian sharing of assets globally and consequently the protection of the reserved portion of mandatory heirs (‘legítima’).
Nonetheless, as this is a matter of Federal law, local State Courts’ decisions can be subject to review by the Brazilian Federal Courts.
3.4. Local case law developments
Local case law is not relevant as State Courts’ rulings over matters regulated by Federal law are always subject to the Brazilian Federal Courts.
3.5. Practice trends
Waiver of inheritance rights
The surviving spouse or companion in a civil union, in concurrence with descendants, will either retain their share of the common assets due to marital property regime (universal communion of assets) or inherit a share of the estate (total separation of assets), or both retain their share of common assets and inherit a share of private assets (partial communion of assets).
Brazilian law does not recognize agreements and waivers of inheritance rights related to the succession of a living person. Consequently, there is no matrimonial regime in Brazil that allows couples to maintain their assets separately both in case of divorce and succession. Nevertheless, some couples have been expressing their desire to mutually waive their inheritance rights by executing agreements, which are not enforceable in case of disputes but can be an expression of the couple’s intention and useful should the legislation change.
A civil union is a legal family entity where two individuals hold a public, ongoing, and long-lasting relationship intending to constitute a family. It is a legal fact and does not require formal procedures or documents to legally and validly exist. In view of this, “dating agreements” are an alternative, as contracts where two individuals, in a close relationship, declare that their relationship status is “dating” and does not constitute nor is to be deemed as a civil union. Legally, if the relationship is in fact a civil union and not merely a dating relationship, this contract is not able to avoid the recognition of a civil union if a dispute is brought to Courts. The facts are stronger than the declaration itself. However, since constitution of the civil union relies on relevant facts, circumstances, and behavior of the individuals, dating agreements may be accepted as proof of the lack of desire to constitute family (one of the conditions of the civil union) by the time of signature.
Currently, there are no provisions on digital inheritance in Brazilian legislation. However, considering the growing importance of the matter as people are increasingly holding assets in digital format, Brazilian Courts have been determining the inclusion of digital assets in the succession of an individual. There are two types of digital assets, those with and without economic valuation. For the first one (e.g., cryptocurrencies), Brazilian Courts understand that they may be included in the succession equally to other types of assets and under the same terms, as provided for by the applicable law. As for assets without economic value (e.g., social networks and photos), they shall not be included in one’s succession, because they are directly related to the individual’s privacy. In this respect, heirs are also prevented from obtaining access, for instance, to the deceased’s social media account passwords or to the content of private messages.
3.6. Pandemic related developments
Before the pandemic, most of the communication between the parties, Courts trials and hearings were done in person, with the presence of the parties and their counsels. However, since the lockdown, Courts adopted alternative remote communication tools. Exchanges with judges or between parties via telephone and e-mail and Court hearings and trials via video-conferences became more common and efficient. The National Justice Counsel has recently implemented and regulated the possibility and validity of execution of public deeds via videoconference and signatures by digital means.
4 . Frequently asked questions
1. Would surviving companions be considered forced heirs according to the Brazilian Supreme Court?
In 2017, the Brazilian Supreme Court (Extraordinary Appel No. 878.694) recognized and declared the unconstitutionality of article 1,790 of the Brazilian Civil Code and declared that companions in civil union and spouses in marriage have the same succession rights. The Brazilian Supreme Court modulated the effects of said ruling by determining that it should only be applicable to judicial proceedings where a final decision has not been reached and extrajudicial partition proceedings in which a public deed has not been registered yet.
2. Could a trust validly established in another jurisdiction be recognized in Brazil?
Brazil, like other civil law jurisdictions, does not recognize the concept of trusts and is not a signatory to the Hague Convention on the Law Applicable to Trusts and on their Recognition, which specifies the law applicable to trusts, lists their characteristics and governs their recognition among its contracting parties. In Brazil, there is no legal institute that perfectly corresponds to trusts within Brazilian laws and that fact leads to a constant uncertainty on how such contractual relationship will be interpreted by tax authorities and, if challenged, Brazilian courts.
Notwithstanding the foregoing, according to Decree-Law No. 4,657/1942 (Law of Introduction to the Brazilian Law), a valid obligation undertaken by a party pursuant to applicable foreign laws should be recognised in Brazil. This is to say that trusts created abroad that are deemed valid and enforceable pursuant to applicable laws should be respected and complied with in Brazil. Careful consideration should be given to the set-up of the trust as it could give rise to adverse consequences.
3. Would inheritances and donations received from abroad by a Brazilian tax resident be subject to IGT?
In 2021, Brazilian Supreme Court (Extraordinary Appeal No. 851.108/SP) ruled unconstitutional the IGT levied on inheritance of assets located abroad, as long as there is no complementary law regulating the matter, as provided in the Federal Constitution. Therefore, currently, and until a complementary law is enacted, assets located abroad and transmitted as inheritance to successors domiciled in Brazil should not be subject to IGT.
Notwithstanding, the Brazilian Supreme Court (Direct Action of Unconstitutionality by Omission 67) determined a period of one year for the enactment of the complementary law regulating the incidence and collection of IGT in cases of inheritance of assets abroad and other cases provided for in the Federal Constitution. Such period will expire in June, 2023.
4. Could a Brazilian tax resident contract a foreign life insurance?
Life insurance companies in Brazil must comply with ordinary and complementary laws, as well as the rules of the National Council of Private Insurance (CNSP) and Private Insurance Superintendence (SUSEP). Insurance companies and intermediaries, when acting and doing business in Brazil, must be licensed with SUSEP. Likewise, insurance products can only be offered in the Brazilian market upon its registration with SUSEP.
As a general rule, Brazilian residents may only contract foreign insurance products (that is, those that have not been subject to registration and approval of the SUSEP and are offered by foreign insurance companies) with non-Brazilian based approved providers under the following specific situations:
- to cover risks for which there is no offer of insurance in Brazil, as long as the contract of such product does not represent a violation to the Brazilian legislation in force;
- to cover risks taken abroad by persons residing in Brazil, as long as this coverage be restricted to the period spent abroad by the Brazilian resident;
- the insurance is subject to international treaties ratified by the Brazilian Congress;
- to secure hulls, machines and civil liability related to vessels; and/or
- if, according to the legislation in force until January 16, 2007, the insurance was validly contracted abroad.
Despite those legal restrictions, we have seen the increase of the use of foreign life insurance policies by Brazilian citizens in the context of their succession planning and/or relocation planning. Careful consideration should be given when examining the form of acquisition of the policy to avoid adverse consequences for the contracting party and the insurance company.