STJ rules: estate may exercise call option on company quotas

The 3rd Panel of the Superior Court of Justice (STJ) ruled, by a 3-to-2 vote, in Special Appeal (REsp) 2,200,297/SP, on October 20, 2026, that a call option on company quotas agreed upon during the holder’s lifetime may be exercised by the holder’s estate when the contract provides that it extends to heirs and successors.

The case involves the estate of João Carlos Di Genio, founder of Grupo Objetivo and UNIP. In 2017, he signed contracts with his two nieces, partners in Cable Link Radiodifusao LTDA, granting him the right to acquire, in whole or in part, the quotas they held in the company

In addition to the express extension to heirs and successors, the contracts, executed on an irrevocable and irreversible basis, had other features relevant to the outcome: the right could be exercised at any time while the company existed; prior notice was all that was required to exercise it; and the acquisition could cover all of the quotas held by both partners.

Di Genio died in 2022 without exercising this right and, in September 2023, the estate (that is, the set of assets, rights and obligations he left behind pending their distribution among the heirs), represented by its administrator, notified the partners of its intention to acquire the quotas. The partners refused to sell them and filed a declaratory action, arguing that the right was strictly personal, meaning exclusive to Di Genio, and had therefore been extinguished upon his death. This argument was rejected by the trial court and by the São Paulo State Court of Appeals.

At the STJ, the opinion of the reporting justice, Justice Ricardo Villas Bôas Cueva, was joined by Justice Nancy Andrighi and Justice Humberto Martins. In their view, the right to acquire the quotas is economic in nature and therefore forms part of the inheritance, like any other asset. The reporting justice added that, until distribution, it is for the estate to provisionally manage these assets and exercise the rights attached to them. Casting the deciding vote, Justice Humberto Martins noted that, had the parties intended the option to lapse upon Di Genio’s death, they could have expressly provided for this in the contract.

The reporting justice observed that, in options involving equity interests, due regard must be given to affectio societatis, a term referring to the partners’ willingness to cooperate toward a common purpose, and that this bond of trust may, in certain cases, prevent third parties from entering the company. In this case, however, the contract expressly provided that the call option extended to Di Genio’s heirs and successors and that it covered all of the partners’ quotas, meaning they would leave the company after the transfer, which removed this obstacle.

Justices Moura Ribeiro and Daniela Teixeira dissented. In their view, the right was intuitu personae, a Latin expression designating something granted in consideration of the person. According to Justice Moura Ribeiro, the nieces granted the right to their uncle because of the personal trust they placed in him, his attributes and his know-how, and not to whoever might succeed him, emphasizing that the call option had been agreed upon in his name. For the dissent, a call option is not the same as acquiring the quotas: until exercised, it is merely an entitlement to enter into a future contract and, since Di Genio died without exercising it, the quotas never became part of his assets. Justice Daniela Teixeira added that the right could only be recognized as economic in nature had the option been exercised during his lifetime.

The decision shows that, in such cases, what was agreed in the contract prevails. Family businesses and partners with contracts of this kind should therefore clearly define whether the call right passes to heirs, the deadline for exercising it after death, the procedure for doing so, and how it interacts with the other partners’ right of first refusal on the acquisition of quotas. In any event, the narrow vote indicates that the issue is not yet settled, particularly where the contract is silent on the matter.

The judgment has not yet been published; the information above is based on the votes delivered at the court session.