The blood bond is not the only bridge that connects parents and children. Adoption is proof that affection can structure a family — with the same rights and duties. In an increasingly complex society, other types of bonds emerge and challenge justice, especially in discussions around the division of assets left in inheritance.
This is the case of socio-affective kinship. Lawyer Silvana Schroeder, from São Paulo, explains that this relationship of affiliation without biological ties needs to follow some rules to be granted. “This type of kinship is configured by the constant presence of bonds of care, creation and the public manifestation of paternity or maternity, forming a consolidated family relationship”, he says.
The matter gained repercussion following the recent recognition of affiliation between a young woman and the greatest idol in world football. Gemima Lemos MacMahon, 32, was considered the socio-affective daughter of Edson Arantes do Nascimento, known as Pelé.
The “King of Football”, with 3 World Cup victories under his belt, died from complications from colon cancer, on December 29, 2022. The discussion surrounding the division of assets left by the football idol is the subject of the fourth report in the Heritage Specialpublished this week by InvestNews. The cases of Mussum, Zagallo e Gal Costa have already been portrayed in the series.
Pele is the father of 7 children natural of different relationships. From his first marriage, which lasted from 1966 to 1978, with Rosemari de Reis, they were born Kelly Cristina, Edinho and Jennifer. From his second marriage, from 1994 to 2008, with Assíria Seixas Lemos, it was time for Joshua and Celeste.
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Pelé had 2 more daughters from extramarital relationships: Flávia Cristina and Sandra Regina — even with a DNA test proving that she was her biological daughter, she was never accepted by Pelé. Sandra Regina was a councilor in Santos, her father’s hometown, and author of the book “The Daughter that the King Didn’t Want”. She died in 2006, aged 42, from breast cancer.
The heritage left by the world football icon, estimated at R$78 millionwas divided between the widow, Márcia Aoki, the 6 natural children who are still alive and the socio-affective daughter, Gemima. In the case of Sandra Regina, the inheritance goes to her two sons, Octávio and Gabriel.
Gemimah is the daughter of Assyria. As a child, he created ties with his football idol when he was married to his mother. As the bond of socio-affective daughter was only recognized after the death of the former player, Gemima filed a lawsuit to recognize her parentage, which had the support of the other heirs. With the status of heir, she was included in Pelé’s inventory, which is being processed in the 2nd Family and Succession Court of the Santos Court (SP).
Gemima now has the same rights and privileges as Pelé’s biological children. But what does the law say about socio-affective kinship?
Protected right
This type of bond is protected by Federal Constitution of 1988through the principle of human dignity, listed in article 1, item III. The ECA (Child and Adolescent Statute) also supports this affiliation by prioritizing the child’s right to a family.
Article 1,593, of the Civil Codeis another device that equates biological and socio-affective kinship bonds. This understanding gained strength, according to family law experts consulted by Investnewswhen the STF analyzed the concept of multiparenthood in 2016 and granted the possibility of a person having more than one parent — both biological and socio-affective.
For Sueli de Souza Costa e Silva, leader of the Special Center at Benício Advogados, the Supreme Court’s decision consolidated the understanding that a child can have two fathers or two mothers, with emotional coexistence being the fundamental criterion for recognizing filiation.
“This understanding also opened space for the recognition of socio-affective children as legitimate heirs, which guaranteed them the same rights as biological children. The recognition of multiparenthood reinforces the protection of the family, ensuring equal treatment, which avoids discrimination”, says the lawyer.
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How to prove socio-affective bond?
There are countless ways to obtain proof of socio-affective affiliation. The most used, according to family law experts, are the following:
- Documentary Evidence
• Photos and records of coexistence: Images that show the close relationship, such as parties, outings and family moments;
• Letters, emails or messages: Communication exchanges that demonstrate affection, care and recognition of the bond;
• School or medical records: Indications of the person responsible as “father” or “mother” in the child’s official documents;
• Name on formal documents: Name of the socio-affective paternal or maternal figure as responsible in certificates, contracts or registrations. - Testimonial Evidence
• Testimonials from friends, relatives and neighbors: Testimonies from close people who can narrate facts that confirm the socio-affective paternity or maternity relationship;
• Reports from teachers and other professionals: Speeches by professionals who live with the child, such as teachers or caregivers, can help to attest to the bond. - Acts of Recognition
• Enrollment in a health plan or insurance: Registration of the child as dependent on the father or mother;
• Financial maintenance acts: Evidence that there is some regular contribution to the child’s support, such as school, food or health payments;
• Formal recognition: Public or official statements in which the person presents themselves as the child’s father or mother, such as on social networks or in informal conversations. - Tests of Coexistence and Affection
• Continuous relationship of care and protection: Daily or frequent presence, active participation in the child’s education, health and development;
• Commemorative dates: Participation in important moments, such as birthdays, Christmas and graduations. - Psychological or Social Opinion
• Psychosocial study: Reports prepared by social workers or court psychologists who investigate and analyze the relationship between the parties;
• Judicial expertise: In legal proceedings, the magistrate may order a specialized analysis to confirm the socio-affective bond.
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Equality assured
The inventory, for the socio-affective child, follows the same procedures as that opened by a biological child, as determined by the Court. If the socio-affective relationship is not yet recognized, it is necessary to file an action to recognize socio-affective affiliation post mortemin Gemima’s case, to secure status as a necessary heir.
And both have equal conditions in the patrimonial succession process. “If there is a will, as well as for other necessary heirs, the right to legitimate inheritance of the deceased person’s assets will be guaranteed, even if the will benefits third parties”, highlights lawyer Laísa Santos, specialized in Family and Succession Law.
For the avoidance of doubt: heirs needed are those who have a legal right to a part of the inheritance left by a deceased person. In the Civil Code, article 1,815 stipulates that this group includes descendants (children and grandchildren), ascendants (parents and grandparents) and spouses.
Whoever is in one of these positions has the right to receive, in an equitable manner, the mandatory division of 50% of the inheritance assets, known as legitimate.
The calculation of legitimate inheritance is made based on the value of assets existing at the beginning of the succession process, subtracting funeral expenses and any debts that the deceased may have left from the estate.
The other 50% of the equity is listed as inheritance available. In it, the allocation of goods is free and can benefit anyone.
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The socio-affective bond may still be contested by an heir. In this case, it is necessary to seek recognition in court, in parallel with the inventory, says lawyer Sueli de Souza Costa e Silva. “Once recognized, the socio-affective child participates in the sharing on equal terms with the other legitimate heirs”.
For the experts consulted, the will can be an instrument for protecting the rights of the socio-affective child, especially in situations where the bond is not yet formalized. “The inclusion of the socio-affective child in the will avoids legal disputes and ensures their participation in the inheritance”, emphasizes lawyer Silvana Schroeder.
