ESTATE PLANNING IN DIVORCE: THE PRENUPTIAL AGREEMENT AS AN INSTRUMENT OF AUTONOMY AND PROTECTION

Abstract

This paper addresses marital property planning in the context of divorce, focusing on the prenuptial agreement as a legal instrument for protecting private autonomy and preventing litigation. This is a theoretical research based on a bibliographical review of civil legislation, specialized doctrine, and relevant case law. The study aims to demonstrate the practical relevance of prenuptial agreements in regulating the matrimonial property regime, analyzing their possibilities, limitations, and interaction with institutes such as real subrogation and debt assumption. The research examines the four property regimes established in the Brazilian Civil Code, exploring mixed regimes created by party autonomy, protection of separate property through subrogation, and the implications of debt assumption over financed assets at the time of asset division. The results indicate that prenuptial agreements, when drafted with proper legal counsel, constitute an effective tool for property organization, capable of reducing divorce conflicts and providing greater legal certainty for both spouses. The conclusion is that the preventive role of the family law attorney is as relevant as the adversarial one, with prior marital property planning being an ethical and practical duty of the professional committed to protecting their clients' interests.