Portuguese inheritance law is governed by the Civil Code, which sets out the rules for distributing assets after a person’s death. The law gives priority to heirs such as spouses, children, and parents, ensuring they receive a statutory portion of the estate.
These beneficiaries, known as “forced heirs,” are entitled to a mandatory share, regardless of the deceased’s will. The remaining estate, referred to as the “disposable portion,” can be freely distributed according to the deceased’s wishes.
The law also deals with succession in cases where there is no will, giving preference to close relatives over distant ones. Inheritance tax, known as Stamp Duty, is usually applicable.
In this article, we’ll explain how foreign wills work, what letters of wishes are, and examine Portugal’s law of succession.
Foreign Wills
Portuguese inheritance law can be complex, especially for those wishing to distribute their assets differently. Additionally, the process of probate, handling cross-border estates, and understanding applicable taxes, such as the Stamp Duty, can add layers of complexity.
However, foreign wills can be recognized and enforced in Portugal under Portuguese inheritance law even if you don’t have Portuguese citizenship, but certain conditions must be met to ensure their validity and proper execution.
For a foreign will to be recognized in Portugal, it must comply with the formal requirements of the country where it was created or the nationality laws of the testator (person who made the will) at the time of its creation. The will must be valid under either Portuguese law or the law of the country where it was executed.
Also, if the foreign will originates from a country that is a signatory to the Hague Apostille Convention, it must be legalized through an apostille. If it is from a non-signatory country, it may need to undergo consular legalization. Additionally, the will must be translated into Portuguese by a certified translator.
But that doesn’t mean the foreign will is going to be executed exactly as it states. The application of Portuguese inheritance law still applies, and even if a foreign will is recognized in Portugal, it is subject to the forced heirship rules.
These rules mandate that certain family members (spouses, children, and sometimes parents) are entitled to a compulsory portion of the estate. This mandatory share must be honored, regardless of the provisions of the foreign will.
If there is a conflict between the provisions of the foreign will and Portuguese law, Portuguese inheritance rules will generally prevail, especially concerning the rights of forced heirs.
However, under the EU Succession Regulation (Brussels IV), the testator can choose the law of their nationality to govern the succession of their estate, potentially bypassing some aspects of Portuguese forced heirship.
Further complicating matters is if the estate includes assets in multiple countries. Then, coordination between jurisdictions is necessary to ensure the foreign will is properly executed according to the laws of all relevant countries, including Portugal.
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Portugal's Law of Succession
Portugal’s succession law outlines the rules for distributing a deceased person’s estate and provides a framework for determining how assets are inherited, either through a will (testate succession) or in the absence of a will (intestate succession).
Forced Heirship Rules
Portuguese succession law includes strict “forced heirship” provisions. These rules protect close family members, known as “legitimate heirs,” by guaranteeing them a mandatory portion of the deceased’s estate, regardless of the will’s contents. The legitimate heirs typically include:
- Spouses
- Children (or descendants)
- Parents (or ascendants), if there are no children
The estate is divided into two parts: the “legitimate portion” (which must be reserved for the legitimate heirs) and the “disposable portion” (which the deceased can freely distribute in a will).
The size of the legitimate portion depends on the number and category of heirs. For example, if the deceased leaves a spouse and children, they are entitled to at least half of the estate. If there is only a spouse or children, the legitimate portion is generally two-thirds of the estate.
Intestate Succession
If the deceased did not leave a valid will, the estate is distributed according to the rules of intestate succession. The Civil Code outlines a specific order of priority for heirs:
- First Class: Descendants (children and their descendants)
- Second Class: Ascendants (parents and their ancestors)
- Third Class: Spouse
- Fourth Class: Siblings and their descendants
- Fifth Class: Other relatives up to the fourth degree (e.g., cousins)
- Sixth Class: The State, if there are no surviving relatives within the fourth degree.
Assets are distributed among the heirs in each class. If an heir is deceased, their share passes to their descendants. If the spouse and descendants survive the deceased, they are entitled to two-thirds of the estate. If only descendants are present, they are entitled to either one-half or two-thirds of the estate, depending on the number of children—one child receives one-half, while two or more children share two-thirds. If a spouse and ascendants survive, they are entitled to two-thirds of the estate as well.
Applicable Law for Foreign Nationals
EU Succession Regulation: For EU citizens, the EU Succession Regulation (Brussels IV) allows the deceased to choose the law of their nationality to govern their estate. This choice must be clearly stated in a will.
If no choice is made, the law of the country where the deceased had their “habitual residence” at the time of death generally applies.
Non-EU Nationals: For non-EU nationals, the applicable law for succession will depend on bilateral treaties or agreements between Portugal and the deceased’s country of nationality or residence.
What is a Letter of Wishes in Portugal?
A Letter of Wishes is a non-legally binding document often used in Portugal that provides guidance to the executors of a will, trustees of a trust, or guardians of minor children regarding how the person making the letter (the testator or settlor) would like their affairs to be handled after their death.
While it is not a formal legal document in Portugal like a will or trust deed, a Letter of Wishes can play an important role in estate planning by offering additional context and clarity about the testator’s intentions and preferences.
Non-Legally Binding: Unlike a will or trust, a Letter of Wishes does not have any legal force in Portugal. It is not enforceable by law, meaning the executors, trustees, or guardians are not legally required to follow its instructions.
Supplement to a Will or Trust: A Letter of Wishes is typically used in conjunction with a Portuguese will or trust to provide additional detail that may not be suitable for a formal legal document. For example, it may outline specific funeral arrangements, personal belongings to be given to individuals, or suggestions on how to manage a trust for beneficiaries.
Guidance for Executors and Trustees: The letter can give executors and trustees guidance on various matters, such as the management and distribution of assets, the handling of family heirlooms or sentimental items, or the provision of care for pets. It can also offer direction on how to manage discretionary decisions, such as when and how to distribute assets to beneficiaries under a Portuguese trust.
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Frequently Asked Questions About Portuguese Inheritance Law
What is the forced heirship rule in Portugal's inheritance law?
In Portugal’s inheritance law, there is a rule called forced heirship, which requires specific close family members, known as “legitimate heirs,” to receive a designated portion of the deceased person’s estate, regardless of the contents of the will. These heirs usually include the spouse, children, and sometimes parents. The forced share must be respected, and the person making the will, known as the testator, can only freely distribute the remaining portion of the estate, known as the “disposable portion.”
Can I exclude a forced heir from my will in Portugal?
In Portugal, you are usually unable to exclude a forced heir from your will. Forced heirship rules safeguard specific heirs, such as spouses, children, and sometimes parents, by granting them a mandatory portion of the estate. However, in exceptional circumstances, a forced heir may be disinherited for serious reasons, such as if the heir has committed a serious crime against the person making the will or another close family member. Disinheritance must be explicitly stated in the will and justified with a valid legal reason.
What happens if someone dies without a will in Portugal?
If a person dies without a will (intestate) in Portugal, the estate is distributed according to the rules of intestate succession as outlined in the Portuguese Civil Code.
Can a foreign will be recognized in Portugal?
A will from another country can be acknowledged in Portugal if it follows the formal requirements of the country where it was created, the testator’s nationality laws, or Portuguese law. The foreign will needs to be legalized (typically with an apostille or consular legalization) and translated into Portuguese by a certified translator. Even if acknowledged, the foreign will must adhere to Portuguese forced heirship rules, which could take precedence over certain provisions.
What are the rights of a surviving spouse under Portuguese inheritance law?
In Portugal’s inheritance law, a surviving spouse has significant rights, especially under the forced heirship rules. The spouse is entitled to a mandatory share of the estate, and this share may vary depending on the presence of other heirs, such as children or parents. If there are children, the spouse typically shares the estate with them.
