In REsp No. 2,223,719, the Superior Court of Justice (STJ) held that a former spouse who is entitled to half of the equity interests (quotas) of a company, but who did not become a partner, is nevertheless entitled to the profits and dividends generated by such interests until the full payment of the buyout amount (haveres).
In the case at hand, the company was formed during the marriage, and the equity interests were formally held by the former wife. Following the dissolution of the marital relationship, the former husband was recognized as entitled to half of those equity interests. The dispute centered on the ownership of the profits generated by the company between the date of the de facto separation and the effective calculation and payment of the buyout amount.
The lower court held that the former spouse would only be entitled to profits until the date of the de facto separation. The Third Panel of the STJ overturned this decision.
Legal Nature of Equity Interests After the Dissolution of the Marital Relationship
Justice Nancy Andrighi emphasized that a de facto separation does not automatically extinguish co-ownership over marital assets.
With respect to equity interests acquired during the marriage, the STJ reaffirmed that:
- The former spouse does not become a partner, as entry into the corporate structure requires the consent of the other partners (Article 1,057 of the Civil Code).
- Nevertheless, the former spouse becomes the holder of patrimonial rights over half of the equity interests, thereby forming a co-ownership over such interests with the spouse who formally remains a partner.
This situation is referred to in legal doctrine as a “sub-partnership” (subsociedade).
The STJ expressly cited Article 1,319 of the Civil Code, which provides that:
“Each co-owner is entitled to the fruits of the common property until partition is completed.”
In the corporate context, the term “fruits” encompasses profits and dividends.
Recognition of the Right to Fruits (Profits and Dividends)
The reporting justice highlighted that ownership of equity interests produces two distinct effects:
a) Political rights (management and deliberation)
These are not transferred to the former spouse:
- no voting rights;
- no management powers;
- no participation in shareholders’ or partners’ meetings.
b) Economic rights (participation in results)
The patrimonial ownership of the equity interests remains protected, granting the former spouse the right:
- to share in profits proportionally to their marital share;
- to receive dividends already distributed to the other spouse during the period of co-ownership;
- to be indemnified if such profits were exclusively appropriated by the remaining partner.
Accordingly, the STJ recognized that a non-partner former spouse is entitled to the profits and dividends generated by the equity interests until the effective payment of the buyout amount.
This understanding reinforces that, in cases of dissolution of marriage or stable union involving a company whose equity interests were acquired during the relationship, the patrimonial value of such interests—until partition or payment—entitles the former spouse to the corresponding fruits (profits/dividends), even if they are not a partner of the company.
Temporal Scope: From De Facto Separation to Payment of the Buyout Amount
The date of the de facto separation is relevant as the starting point for the accrual of this right, but it does not automatically terminate the right to fruits. The right only ceases upon the payment of the buyout amount, i.e., when the co-ownership of the equity interests is extinguished.
The company or the partner holding the equity interests must be mindful of the risk of a “sub-partnership” (a creditor former spouse) and take this into account in corporate planning or in the liquidation of the buyout amount.
The legal rationale is straightforward: as long as the former spouse has not received the amount corresponding to the equity interests, they remain a co-owner of such interests; and as a co-owner, they are entitled to the fruits generated by them.
Therefore, profits accrued after the de facto separation but prior to the full settlement of the buyout amount also belong to the former spouse.