Portuguese Forced Heirship: What You Cannot Leave Away From Your Family

Portuguese law reserves a fixed portion of an estate for the closest family, and no will can take it away from them. That reserved portion is called the legítima, the people entitled to it are the surviving spouse, the descendants and the ascendants, and a will that ignores them is not void, it is cut back until it fits.

Whether those rules apply to your estate at all is a separate question, and for an American who has never lived in Portugal the answer is frequently no. Both halves of that sentence matter, and families usually hear only one of them.

In this article:

• 1. What is forced heirship in Portugal?
• 1. Who is protected, and how much of the estate is reserved
• 1. Does it apply to an American who never lived in Portugal?
• 1. What happens to a will that ignores the reserved share
• 1. Why the register decides who the protected heirs are
• 1. Frequently asked questions
• 1. Conclusion

What is forced heirship in Portugal?

It is the rule that a portion of every estate belongs to certain family members by law rather than by choice. The Portuguese Civil Code calls that portion the legítima and defines it as the part of the estate the testator cannot dispose of, because it is set aside for the heirs who are protected by law (articles 2156 and following of the Civil Code).

The logic is different from the American default, and that is the source of most of the confusion. In much of the United States a person may leave their estate broadly as they wish, with a surviving spouse protected by an elective share and children generally not protected at all. Portugal starts from the opposite premise: the family's entitlement exists first, and testamentary freedom operates only over what is left after it.

There is no way to contract around it inside Portuguese succession law. It is not waived by a will, not defeated by leaving assets to a trust, and not avoided by silence.

Who is protected, and how much of the estate is reserved

Three categories of heir are protected, and only three: the surviving spouse, the descendants and the ascendants (article 2157 of the Civil Code).

Descendants means children first, and then their own descendants by representation where a child has died. Ascendants means the parents, and above them the grandparents, but they are only protected where there are no descendants. Siblings, nephews, cousins and unmarried partners are not in this list, which surprises families who assume that living arrangements translate automatically into succession rights.

The surviving spouse is the category that causes the most damage in files with an American branch, for a reason that has nothing to do with succession law and everything to do with the civil register. Portugal identifies the surviving spouse by reading its own record of the marriage, and that record is frequently out of date by decades.

The size of the reserved share then depends on who survives, and the fractions are set by the Code rather than negotiated.

What remains after the reserved share is the disposable portion, and that is the part a will can direct freely. In a household with a spouse and children, a Portuguese will therefore operates over one third of the estate and no more.

Read the second row again, because it is the one that applies to most families. A surviving spouse and children together take two thirds by law, regardless of what any document says, and regardless of how long the marriage lasted.

Does it apply to an American who never lived in Portugal?

Often it does not, and this is where most of the fear can be removed.

Portugal applies the European rules on cross-border succession, which decide, for every estate with an international element, which country's law governs the succession as a whole. The default connecting factor is where the deceased was habitually resident at the time of death (article 21 of Regulation (EU) 650/2012). A person may instead choose the law of their nationality to govern their whole succession, and that choice has to be expressed in the terms of a disposition of property upon death (article 22).

The consequence for an American of Portuguese descent living in New England is direct. If habitual residence at death was in the United States and no choice of law was made, the succession is in principle governed by the law of that habitual residence rather than by Portuguese succession law, including in respect of a house standing in São Miguel. The estate does not split by asset location; the Regulation governs the succession as a whole.

Three cautions belong immediately next to that. The first is that habitual residence is a factual test, not a matter of declaration, and it is assessed on the whole life of the deceased. The second is that the applicable law is not the same question as the procedure: Portuguese assets still pass through Portuguese formalities, with a deed of heirs and a land registry entry, whatever law governs the substance. The third is that this is precisely the question a family should settle at the beginning of a file, because everything after it is built on the answer.

For someone who does move to Portugal, the position reverses. Habitual residence in Portugal at death points to Portuguese law, forced heirship included, unless a valid choice of national law was made in a will.

What happens to a will that ignores the reserved share

It is not thrown out. It is reduced.

Where the dispositions in a will, or gifts made during life, exceed the disposable portion, Portuguese law provides for the reduction of those excessive dispositions so that the reserved share is restored to the protected heirs (articles 2168 and following of the Civil Code). The mechanism operates on the excess rather than on the document, and it is triggered by the protected heirs rather than by the State.

Lifetime gifts are inside the calculation, which is the part that catches families out. Transferring a house to one child years before death does not remove it from the arithmetic if Portuguese law governs the succession; it is brought back into account when the reserved share is computed.

None of this is a reason to avoid making a will. It is a reason to make one that knows which law it is operating under, because a document drafted on American assumptions and applied under Portuguese law produces exactly the litigation between siblings that it was meant to prevent.

Why the register decides who the protected heirs are

Because Portugal identifies the family from its own civil record, not from the family's account of itself.

If a couple divorced in a United States court and the divorce was never brought into the Portuguese record, the Portuguese register still shows the marriage as standing. The former spouse therefore still appears as the surviving spouse, and a deed of heirs built on that record would name them as a protected heir. That is not a theoretical risk; it is the most common defect we find in estates with an American branch.

The reason it persists is that a decision handed down by a court outside the European Union produces no effects in Portugal by itself, however final it is at home. It must first be reviewed and confirmed by a Portuguese court in a documentary process set out in articles 978 and following of the Civil Procedure Code, and only then annotated against the marriage record.

The same gap works in reverse. Where the deceased remarried after an American divorce, the second marriage could not be transcribed while the first stood on the record, so the person who was actually the spouse at death may not appear in the Portuguese register at all, and therefore may not appear among the protected heirs either.

Frequently asked questions

Can I disinherit a child under Portuguese law? Not by simply leaving them out. The reserved share exists independently of the will, and the Code provides only narrow, formally declared grounds for exclusion. Silence in a will does not achieve it.

Does a trust created in the United States solve this? It does not automatically. Whether an American structure produces the intended effect over Portuguese assets depends first on which law governs the succession, and then on how the structure is characterized here. It is a question to settle before the structure is relied on, not after.

Is my unmarried partner protected? Not as a protected heir under the forced heirship rules, which list only the spouse, descendants and ascendants. Any provision for a partner has to come out of the disposable portion, where Portuguese law governs.

Does inheriting Portuguese property make me a Portuguese taxpayer? Owning or inheriting property is not the same as being tax resident, and Portugal, like almost every country, attaches tax duties to where a person lives rather than to nationality or asset location. The specific tax treatment of an inheritance is a matter for an accountant, and this firm does not advise on it.

Conclusion

Two questions decide a Portuguese estate, and they have to be answered in order. First, which country's law governs the succession, because for an American who never moved to Portugal it may well not be Portuguese law. Second, who the Portuguese register says the family is, because that is where the wrong name is usually sitting.

At Fluxia Law our core work is the second question: bringing foreign decisions and foreign family events into the Portuguese record so that an estate can be built on a register that matches the family. Where an unrecognized divorce is what puts the wrong person among the heirs, that is the piece we deal with first.

Read also

• Your Ex-Spouse Is Still an Heir in Portugal Until the Divorce Is Recognized
• Inheriting a House in the Azores From the United States
• Married Abroad, Living in Portugal: Making Your Family Status Official