Rêgo, Carolina Noura de Moraes2024-11-272024-11-272022CARNEIRO, Hamilton Gomes. A limitação da autonomia privada frente à reserva da legítima no ordenamento jurídico brasileiro: um estudo crítico e propositivo. 2022. 204 f. Tese (Doutorado em Função Social do Direito) – Faculdade Autônoma de Direito, São Paulo, 2022.http://repositorio.unialfa.com.br/handle/123456789/471The goal of this paper is to propose a legislative readjustment that prioritizes the testator's private autonomy, in which the reserve of the legitimate starts to have a new conception in the face of the new contemporary demands presented in family relationships. In this sense, we sought to analyze the freedom in the autonomy of the private will in relation to the right of disposition of the will and inheritance, admitting the exclusion of the obligation of the necessary heirs and the possibility of the testator making the full donation of his patrimony to whom he prefers. From this perspective, it was considered the development of a critical and propositional study about the testator's private autonomy and the right to legitimate, conceiving them as constitutional foundations for the basis of this scientific paper. The methodology used involved bibliographic, documentary, descriptive and exploratory study with a qualitative approach from the collected data. Finally, by analyzing all the nuances and specificities involved on the subject, it was sought to defend the necessity of rethinking the institute of the legitimate, which greatly restricts the autonomy of the testator's will. Thus, it is proposed that the legitimate be extinguished, making it possible for the testator, based on the autonomy of the will, to be able to fully dispose of all his assets, except for the situation of some spouse/partner or child with a disability who cannot maintain their own subsistence. Therefore, establishing an amendment to the Civil Code, through the law project proposed on this paper, with the exclusion of the mandatory heirs required, the testator could make a donation in life to the person who assisted him, and not to the family that abandoned him and that, only after his death, reappeared to claim his patrimony. Analyzing the intervention of the State on private property‟s right of the testator, it becomes difficult to identify the social function within the legal restriction established on half of the available inheritance, which can only be admitted in serious violation of the right to property. It is not intended to discuss here the social function of the private property in its integrity, but rather, only in the specific case of testamentary succession, the instrument of protection of the legitimate that raises the denaturing by the fact that one of the fundamental elements to the condition of owner is precisely, besides rejoice in, make use of and claim, he can also dispose of his property.ptAutonomia da vontade privadaReserva da legítimaHerança