A US Will and Portuguese Property: What Actually Governs

A will signed in the United States can operate over a house in Portugal, but it does not decide by itself who inherits. Which country's law governs the succession is settled by the European rules that Portugal applies, and their starting point is where the deceased was habitually resident when they died, not where the property sits and not where the will was drafted.

That single rule explains most of the surprises in these files, in both directions. Some American families discover that Portuguese forced heirship never applied to them at all. Others discover that it applied to everything, including assets in Ohio.

In this article:

• 1. Does a US will control a house in Portugal?
• 1. Which law governs, and how it is decided
• 1. Choosing your national law, and how that choice has to be made
• 1. Is the will formally valid in Portugal?
• 1. What Portugal requires even when American law governs
• 1. Frequently asked questions
• 1. Conclusion

Does a US will control a house in Portugal?

It can, but only to the extent that the governing law allows it to. A will is an instrument; it operates inside a legal system, and the first question in any cross-border estate is which system that is.

Portugal applies Regulation (EU) 650/2012 on cross-border succession, which applies to the succession of people who died on or after 17 August 2015. Two features of it matter before anything else. It designates a single law to govern the succession as a whole, rather than splitting an estate between countries by asset. And it applies universally, meaning the law it designates may perfectly well be the law of a non-EU country, including the law of a US state.

So an American will is not ignored in Portugal, and it is not automatically decisive either. It is read against whichever law governs, and it produces the effects that law gives it.

Which law governs, and how it is decided

By habitual residence at the time of death, unless a valid choice was made.

The general rule is that the law applicable to the succession as a whole is the law of the State in which the deceased had their habitual residence at the time of death (article 21 of the Regulation). The same provision contains an exception for the case where the deceased was manifestly more closely connected with another State, which is applied narrowly rather than as a general escape route.

Habitual residence is a factual test. It is not established by a declaration in a document, by holding a passport, or by owning a house somewhere. It is assessed on the deceased's life as a whole: where they lived, for how long, where the centre of their interests was, where the family was.

The practical consequences for a Portuguese-American household split cleanly.

The last row is not rare, and it is the reason this question is worth answering at the start of a file rather than in the middle of a dispute between siblings.

Choosing your national law, and how that choice has to be made

A person may choose the law of a State whose nationality they hold to govern their succession as a whole (article 22 of the Regulation). Someone with both American and Portuguese nationality therefore has a real choice available.

The choice has requirements. It must be made expressly in a declaration in the form of a disposition of property upon death, or demonstrated by the terms of such a disposition. In plain terms, it lives in the will, and it has to be visible there. It is not made by telling the family, by writing it in a letter, or by assuming it from where somebody kept their assets.

This is where a great many American wills fall short, not because they are badly drafted but because they were drafted for a system in which the question does not arise. A will prepared in Rhode Island that says nothing about governing law is not making a choice, and the default under article 21 then applies.

Two further points belong here. A choice of law does not remove the Portuguese formalities that any Portuguese asset passes through. And Portuguese public policy remains a limit on the application of any foreign law, applied restrictively, but present.

Is the will formally valid in Portugal?

Formal validity is a separate question from governing law, and it is treated more generously.

The Regulation contains its own rule on the formal validity of written dispositions of property upon death (article 27), under which a will is formally valid if it complies with the law of any one of several connected States, including the State where the will was made and the State of the testator's nationality, habitual residence or domicile, whether at the time the will was made or at death.

The effect is that a will validly executed in a US state will usually clear the formal hurdle. What it does not clear is the substantive one: whether its contents can produce the effects it intends under the law that governs the succession.

Certain American instruments raise a further question of characterization rather than of form. Trusts, beneficiary designations and survivorship arrangements do not map neatly onto Portuguese succession categories, and how they are treated here has to be worked out rather than assumed. That is a question to settle before an estate plan is built on them, not after a house in the Azores has been promised to somebody.

What Portugal requires even when American law governs

Formalities, and they are not optional.

Whichever law governs the substance, a Portuguese asset moves through Portuguese procedure. The estate has to be formally opened here, the heirs identified in a Portuguese instrument, and the property entered in the land registry in the heirs' names. Nothing that happened in an American probate court accomplishes any of those three things on its own.

Nor do American court decisions arrive here with effect attached. A decision from a court outside the European Union produces no effects in Portugal by itself, however final it is at home, and must first be examined and confirmed by a Portuguese court in a documentary process set out in articles 978 and following of the Civil Procedure Code. That applies to a probate order admitting a will, to an order determining heirs, and to a decree that dissolved a marriage.

The divorce is the item that most often derails an estate that looked straightforward. Under Portuguese law a surviving spouse is a protected heir, and Portugal identifies that spouse by reading its own civil record. If an American divorce was never recognized here, the register still shows the first marriage as standing, and the deed of heirs would name a former spouse rather than the person who was actually married to the deceased. The will, whatever it says, cannot fix that: the record has to be corrected first.

Jurisdiction is worth one line as well. Where the deceased was habitually resident outside the European Union, the Regulation still allows the courts of a Member State where assets are located to have jurisdiction over the succession in defined circumstances, in particular where the deceased held that State's nationality or had previously been habitually resident there (article 10). It is one of the questions that determines where a family should be acting, and it is answered on the facts.

Frequently asked questions

Do I need a separate Portuguese will for my house in Portugal? Not necessarily, and having two wills carries its own risk of one revoking the other by accident. Whether a second will helps depends on which law governs and on what the first document already says.

My father died in the United States and left everything to one child. Can the others claim in Portugal? That depends first on which law governed his succession. If it was the law of his American habitual residence and no choice of Portuguese law was made, the Portuguese reserved share is not the rule being applied to the estate.

Does the executor named in the US will act in Portugal? Not on the strength of the American appointment alone. Whether that appointment produces effects here is exactly the kind of question that runs through the review and confirmation process before anyone relies on it.

Does owning Portuguese property make me a Portuguese taxpayer? Owning an asset is not the same as being tax resident. Portugal, like almost every country, attaches tax duties to where a person lives rather than to nationality or asset location, and the American system that follows citizenship is the outlier. The tax treatment of any particular estate is a matter for an accountant, and this firm does not advise on it.

Conclusion

The document families argue over is rarely the document that decides the outcome. What decides it is where the deceased habitually lived, whether a choice of law was expressed in the will, and what the Portuguese civil register says about the family, in that order.

At Fluxia Law our core area of practice is the last of those three: having foreign decisions and foreign family events accepted in Portugal so that an estate rests on a register that matches reality. In American files that work almost always begins with a divorce, a marriage or a birth that Portugal never recorded.

Read also

• Inheriting a House in the Azores From the United States
• How to Get a Foreign Court Decision Recognized in Portugal
• Hague Apostille for Court Documents Bound for Portugal