Inheritance Laws in Portugal
Inheritance laws in Portugal are governed by the Civil Code of Portugal. These laws are influenced by civil law traditions, and the system ensures that the distribution of an individual's estate follows specific statutory rules, especially in terms of forced heirship.
In Portugal, there are two primary types of succession: testate (with a will) and intestate (without a will). The laws also prioritize the protection of certain family members, especially descendants, the surviving spouse, and other close relatives.
Key Aspects of Inheritance Laws in Portugal:
1. Testate Succession (With a Will):
Wills: A person in Portugal can create a will to specify how their estate will be distributed. However, forced heirship rules limit the ability to completely disinherit certain family members.
Types of Wills:
- Notarial Will: A will made in writing before a notary. This is the most formal and safest type of will.
- Holographic Will: A will handwritten entirely by the testator. It must be signed and dated but does not require witnesses.
- Public Will: A will that is drafted and read aloud in front of a notary and two witnesses, followed by the signing of the document by the testator and the witnesses.
Testator’s Freedom: While individuals in Portugal are allowed to make a will, forced heirship rules restrict the extent of freedom. A significant portion of the estate must go to certain relatives, regardless of the testator's wishes.
2. Intestate Succession (Without a Will):
- When a person dies without a will (intestate), the estate is distributed according to the statutory rules of intestate succession in the Civil Code of Portugal. The estate is divided based on the deceased's family structure and the presence of descendants or other relatives.
- Order of Priority for Intestate Succession:
- Descendants: The primary heirs are the children (legitimate, adopted, and sometimes even illegitimate children). They inherit the estate equally.
- Spouse: The surviving spouse is also an heir. Their share depends on the presence of children or other relatives.
- Parents: If there are no descendants (children), the estate goes to the parents of the deceased.
- Siblings: If there are no children or parents, the estate is divided among the siblings of the decedent. If a sibling is deceased, their share passes to their children (the decedent’s nieces and nephews).
- Other Relatives: If none of the above relatives exist, the estate is divided among more distant relatives, including grandparents, aunts, uncles, and cousins.
3. Forced Heirship (Reserved Portion):
- Forced Heirship: Portugal has strict forced heirship rules, which ensure that certain family members, known as forced heirs, receive a portion of the estate regardless of the deceased’s wishes. The forced heirs include:
- Descendants (children): They are entitled to a mandatory share (reserved portion) of the estate, and the deceased cannot disinherit them entirely. In most cases, children are entitled to two-thirds of the estate (to be divided among them equally).
- Surviving spouse: The surviving spouse is also a forced heir and is entitled to a share of the estate, which may vary depending on whether there are children or not.
- Parents: If there are no descendants but the parents are still alive, they can also receive a share of the estate.
4. Role of the Surviving Spouse:
- The surviving spouse has rights to a portion of the deceased's estate. The exact share depends on whether there are children or other relatives:
- If there are children, the surviving spouse shares the estate with the children.
- If there are no children, the spouse inherits a one-third share of the estate.
- If the estate is inherited by parents or siblings, the surviving spouse may still inherit a portion, typically one-quarter of the estate.
5. Division of Estate:
- Real Property: If the deceased owned real property, such as land or houses, the inheritance process involves transferring ownership through the Land Registry to the heirs.
- Personal Property: Personal items, including money, bank accounts, vehicles, and other possessions, are divided according to the will or intestate laws.
6. Inheritance of Debts:
- Debts: Heirs inherit both the assets and liabilities of the deceased. If the deceased had debts, heirs must decide whether to accept or renounce the inheritance. Heirs can choose to accept the inheritance with liabilities (meaning they are responsible for the debts) or renounce it entirely if they do not wish to inherit the debts.
7. Probate and Administration of Estates:
- Probate: The probate process in Portugal is handled by the court. If there is a will, the court ensures its validity and appoints an executor (if named in the will) to administer the estate.
- Estate Administration: The executor or administrator is responsible for managing the estate, paying off any debts, and distributing the estate according to the will or the rules of intestate succession.
8. Renunciation of Inheritance:
- Heirs in Portugal have the right to renounce inheritance. This must be done formally through a notarized declaration. Renunciation typically happens when the estate is in debt, and the heirs do not want to be responsible for the liabilities.
9. Time Limits for Inheritance Claims:
- In Portugal, heirs have three months from the date of the death to file a claim for the inheritance. This period can be extended under certain conditions, particularly if the heirs are located abroad.
10. Special Considerations:
- International Inheritance: If the deceased owned property in more than one country or was a foreign national, Portuguese inheritance laws may interact with the laws of the other country. In these cases, the application of international private law may come into play, and heirs might need legal assistance to navigate the process.
Key Takeaways:
- Testate Succession: A person can create a will to distribute their estate, but forced heirship laws protect certain heirs (children and the surviving spouse).
- Intestate Succession: If there is no will, the estate is divided among the closest relatives, such as children, parents, and siblings.
- Forced Heirship: Children and the spouse are entitled to reserved portions of the estate, which cannot be overridden by the testator's will.
- Surviving Spouse: The surviving spouse is entitled to a portion of the estate, depending on whether there are children or other relatives.
- Renunciation: Heirs can renounce the inheritance if they do not wish to inherit property or debts.
- Estate Administration: The court oversees the probate process, and an executor or administrator is appointed to manage the distribution of the estate.
Overall, Portugal's inheritance system is designed to protect family members, particularly descendants and the surviving spouse, through the imposition of forced heirship rules. The legal framework ensures that a portion of the estate goes to close family members, regardless of the deceased's wishes, while still allowing individuals to express their wishes through a will within the boundaries of the law.
RELATED Blog
0 comments