Constitutional Succession and the Challenge of Determining Brazilian Nationality for Those Born Abroad Before 1988

Brazilian Citizenship by Descent (Jus Sanguinis): A Legacy You Can Reclaim

In Brazil, nationality is not defined by ordinary law but by the Constitution itself.

This is a crucial distinction that sets Brazil apart from most countries, where citizenship is regulated by statutory law.

Because of this constitutional nature, each new Brazilian Constitution — from 1891 to 1988 — has redefined who is considered a Brazilian by birth (brasileiro nato). As a result, people born abroad to Brazilian parents may fall under very different legal regimes, depending on the constitutional text in force at the time of their birth.

This phenomenon, known as constitutional succession, creates complex questions of interpretation — especially for those born before the 1988 Constitution, when the conditions for transmitting Brazilian nationality to kids born abroad were much more restrictive.

1. Why the Constitution Determines Nationality

Every Constitution adopted by Brazil has included its own definition of nationality.

Since there is no separate nationality law to interpret or fill in the gaps, the Constitution itself is the direct source of the right to citizenship.

Therefore, any change to the Constitution represents a true succession of legal norms, not just a policy reform. This means that one generation may have acquired nationality automatically, while another — under a different constitutional text — might have needed to take formal steps to secure the same status.

2. The Situation Before the 1988 Constitution

Before 1988, the Constitutions in force generally required that children born abroad to Brazilian parents either:

• move to Brazil or expressely opt for Brazilian nationality upon reaching adulthood.

If neither of these conditions was met, the person was not automatically recognized as a Brazilian citizen — even if both parents were Brazilian by birth.

This left thousands of descendants abroad in a legal gray area: culturally Brazilian, but without formal recognition of nationality.

3. The 1988 Constitution: A More Inclusive Approach

The 1988 Federal Constitution marked a significant shift.

Article 12(I)(c) expanded the possibilities for transmitting nationality by descent (jus sanguinis), allowing Brazilian parents abroad to register their children’s births at a Brazilian consulate or, alternatively, for those children to later reside in Brazil and opt for Brazilian nationality at any time.

This broader formulation effectively removed the age limit that existed under previous constitutions — meaning that even adults could complete the recognition process.

However, the 1988 Constitution did not explicitly state whether its provisions applied retroactively. This omission gave rise to a series of legal debates about people born before its enactment.

4. Which Law Applies? The Principle of “Lex Temporis Actus”

According to Brazilian constitutional doctrine, nationality is determined by the principle of lex temporis actus — the law in force at the moment of birth.

This means that the applicable Constitution is the one in effect when the person was born, even if later constitutions adopted different rules.

Thus, a person born abroad in 1975 would generally fall under the 1967–1969 Constitution, not under the 1988 one.

However, there are cases where later constitutional provisions or judicial interpretations have been applied to correct injustices, especially when the earlier rules would have resulted in statelessness or other inequitable outcomes.

5. The Need for Individual Legal Analysis

Because nationality in Brazil is a constitutional right, not a statutory one, no simple formula applies to all descendants.

Determining whether a person is already Brazilian by birth — or whether they must make a formal option of nationality (opção de nacionalidade) — depends on:

• the date of birth,

• the constitutional text then in force,

• whether the parents registered the birth at a consulate, and

• whether the person ever resided in Brazil.

Even Brazilian authorities sometimes misinterpret these provisions, applying later constitutional rules retroactively or inconsistently. That’s why a case-by-case legal analysis is essential.

6. Beyond Bureaucracy: A Question of Identity

For many families, this is not only a technical issue but also a matter of identity and belonging.

Understanding how constitutional succession affects nationality allows descendants abroad to reclaim their Brazilian citizenship — not as a new privilege, but as a right that may have existed all along.

Take the first step toward reclaiming your Brazilian citizenship by descent — and your place in a community that values identity, history, and opportunity.

📩 Contact us today to schedule a free eligibility consultation.

Your Brazilian heritage might be closer than you think.