Lawsuit filed against a deceased debtor does not authorize redirection against the estate or heirs


A tax execution lawsuit filed against a deceased person cannot be redirected against the estate if it is initiated after the original debtor’s death. This is the current understanding of the Superior Court of Justice, which has consolidated the view that in this case, the lawsuit must be terminated.

Redirecting a tax execution against the estate when the original debtor has not been served does not meet the requirements of the cause of action, as there was no established legal relationship with the defendant, and therefore, lacks legal standing. This was the opinion of Justice Nancy Andrigui in the judgment of Resp No. 1.722.159/DF, stating that the debtor’s death before the initiation of the execution prevents a simple redirection of the execution, as one of the prerequisites for the cause of action is absent. In such a case, the tax authorities must file a new lawsuit against the estate or the heirs.

Similarly, in the judgment of AgRg in AgRg in Resp No. 1.501.230/RS, Justice Humberto Martins emphasized that indeed, Súmula 392 (…) applies, and there is no room for distinguishing. The redirection of the execution against the estate is only permissible when the taxpayer’s death occurs after they have been properly served in the tax execution proceedings. Therefore, if a tax execution is filed against a debtor who is already deceased, one of the prerequisites for the cause of action, namely legal standing, is absent.

These decisions are also based on Súmula 392¹ of the Superior Court of Justice, which prohibits changing the liable party in ongoing tax executions. Substitution is only possible if the debtor has been properly served before their death.
¹ The Tax Authority may replace the tax certificate of debt (CDA) until the judgment of the defenses, in case of correction of material or formal errors, with the prohibition of changing the liable party of the execution.


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