Structuring wealth in favor of descendants is a legitimate and effective instrument of family management, fully compatible with Brazilian law. But it meets a precise limit, set by statute and now reaffirmed by the case law of the Superior Court of Justice (Superior Tribunal de Justiça, or STJ): a gift made while the donor already faces a claim capable of rendering them insolvent may be declared ineffective as against creditors — and that holds whether or not the asset has been formally attached.
What Súmula 375 of the STJ used to say
For years the settled position of the court was that a finding of fraud against enforcement (fraude à execução) depended on registration of an attachment over the transferred asset, or on proof of bad faith by the third party acquiring it. In other words: if the asset was not attached and the recipient did not know of the proceeding, the transfer was, as a rule, upheld.
That approach, embodied in Súmula 375 — one of the court's consolidated statements of case law — gave security to a good-faith acquirer. As a side effect it left a gap: a debtor in litigation could transfer assets to close descendants, and the protection given to the acquirer could make it impossible for the creditor to be paid.
What the STJ has now settled
The Code of Civil Procedure already provides, in article 792, item IV, that it is fraud against enforcement to dispose of or encumber an asset "where, at the time of the disposal or encumbrance, an action capable of reducing the debtor to insolvency was pending against them." Paragraph 1 of the same article is direct as to the consequence: "a disposal in fraud against enforcement is ineffective as against the judgment creditor."
What the Fourth Panel of the Superior Court of Justice settled, in AREsp 2,847,102/GO, decided in March 2026, was how those provisions apply to transfers within a family — in particular, who bears the burden of proving bad faith.
In that context the court held that bad faith need not be proved as against the descendant who received the asset: it is presumed as against the debtor-donor. The focus of the analysis shifts from the acquirer to the transferor.
This is because, where someone is facing a debt claim and, over that same period, transfers assets to descendants, the combination of circumstances — the family relationship, knowledge of the claim, and the effect on the estate — is enough to constitute fraud against enforcement. It need not be shown that the descendant knew of the action, nor that the property was subject to a judicial freeze.
The position is not new at the court; it has been built across earlier decisions, including a motion to resolve conflicting panel decisions (embargos de divergência) before the Second Section, which harmonized the court's internal position in February 2025. What the most recent decision does is apply and reaffirm that line in a concrete setting, signaling that the position has consolidated.
Why this matters for wealth planning
Two entirely different situations have to be told apart clearly.
The first is wealth planning structured preventively, carried out while the owner faces no significant litigation, is not a debtor in enforcement proceedings, and has no insolvency in prospect. In that setting, gifts to descendants, the formation of a family holding company and the organization of succession are legitimate, effective instruments, fully compatible with Brazilian law.
The second is the transfer of assets in the course of enforcement proceedings or of actions that may lead to insolvency — even where the motive is subjectively legitimate, such as securing the continuity of the family business. In that setting, the act is vulnerable to a declaration of ineffectiveness, regardless of the recipient's good faith.
The dividing line is one of timing and context. As a matter of law, there is no safe window for transferring assets after an obligation with the potential to cause insolvency has arisen. Coming before the litigation is the decisive element.
What a business owner should weigh
Anyone holding substantial assets — real estate, shareholdings, financial assets — who has not yet put an organized plan in place needs to understand that the window for doing it safely exists, but is not permanent. It closes at the moment an obligation capable of impairing solvency arises.
Reorganizations carried out before any significant litigation, with proper documentation, a coherent economic rationale and a well-calibrated tax structure, stand on solid legal ground. Those carried out in haste, in response to a claim capable of impairing solvency, are open to challenge, however formally correct the acts and however good the faith of those involved.
The STJ's decision does not create a new risk. It makes explicit a risk that always existed: that transfers of assets made in a context of insolvency can be undone in order to protect creditors. What changes is the clarity and reach of the position.
The practical conclusion
Wealth planning done well is planning done before the need becomes urgent. Once the urgency appears, the legal options available narrow substantially — and any movement of assets begins to carry a significant legal risk that has to be weighed carefully before any decision.
