Dying Without a Will in Portugal: Intestate Succession Rules for Expats
Dying Without a Will in Portugal: Intestate Succession Rules for Expats
When a foreign national dies in Portugal without a valid will — or with a will that doesn't specifically address Portuguese assets — the estate is distributed according to Portuguese intestate succession rules. For British, American, and other English-speaking families expecting testamentary freedom, the outcome can be shocking.
How Portuguese Intestacy Works
Without a will, the Portuguese Civil Code distributes the estate in a rigid hierarchy:
Class 1 — Spouse + Children: The surviving spouse and children each receive equal shares. If the deceased leaves a spouse and two children, each gets one-third. The spouse's share is guaranteed — they cannot receive less than one-quarter of the estate.
Class 2 — Spouse + Parents: If there are no children, the surviving spouse and the deceased's parents share the estate. The spouse receives two-thirds; the parents split the remaining third.
Class 3 — Siblings: If there's no spouse, children, or parents, siblings inherit.
Class 4 — Extended family: Nieces, nephews, and further relatives follow, up to the fourth degree of kinship.
Class 5 — The State: If no relatives within four degrees can be found, the Portuguese State inherits.
The key point: under Portuguese intestacy, you cannot leave everything to your spouse if you have children. The children automatically receive their statutory share.
Brussels IV and Why It Matters
EU Regulation 650/2012 (Brussels IV) determines which country's succession law applies. The default rule: the law of the deceased's last habitual residence governs the entire succession. For a British retiree living in Portugal, that means Portuguese law applies — including the intestacy and forced heirship rules above.
However, Brussels IV allows any individual to elect the law of their nationality to govern their succession. A British national can elect English law (which provides full testamentary freedom). An American can elect the law of their state of domicile.
The catch: this election must be made in a valid will. If someone dies intestate — without any will — there's no vehicle to make the election. Portuguese law applies automatically to all assets located in Portugal.
Portuguese Will vs. English Will
If you have a will drafted in the UK or US, it's technically valid in Portugal. But executing it locally creates significant delays:
- The foreign will must be translated into Portuguese by a certified sworn translator (tradutor juramentado)
- The translation must be notarized
- An apostille is required under the Hague Convention
- Portuguese registries may struggle to interpret unfamiliar legal concepts (trusts, personal representatives, specific bequests using common-law terminology)
A dedicated Portuguese will drafted by a local notary for Portuguese assets eliminates these hurdles. It's immediately executable by the Conservatória and Balcão de Heranças.
The Dual-Will Approach
The standard recommendation for expats with assets in multiple countries:
- Portuguese will covering all Portuguese-situs assets (property, local bank accounts, vehicles), containing a Brussels IV election clause if desired
- Home-country will covering everything else, explicitly excluding Portuguese assets
Critical rule: neither will should contain broad revocation clauses like "I revoke all previous wills." This accidentally invalidates the Portuguese will.
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What Happens to Unmarried Partners
Under Portuguese intestacy, cohabiting partners have no automatic inheritance rights. Zero. If a British couple lived together in the Algarve for 15 years without marrying, and one partner dies intestate, the survivor inherits nothing. The estate passes to the deceased's children, parents, or siblings.
The only exceptions:
- A registered união de facto (de facto union) of at least two consecutive years, certified by the local Junta de Freguesia, gives the surviving partner limited rights — but still less than a married spouse
- A valid will explicitly naming the partner as a beneficiary overrides intestate rules (subject to forced heirship limits)
Making a Will in Portugal as an Expat
The process is straightforward and inexpensive:
- Consult a Portuguese lawyer or notary about your wishes
- Decide whether to include a Brussels IV election clause
- The notary drafts the will in Portuguese
- You sign it at the notary office with two witnesses
- The notary registers it with the Registo Nacional de Testamentos (central wills registry)
Costs: typically €200-€500 for the legal consultation and notarization.
Once registered, the will is discoverable by any heir who requests a certificate from the central wills registry after your death — a mandatory step in every Portuguese probate process.
If a Death Has Already Occurred Without a Will
If you're already dealing with an intestate estate, the path forward is:
- Request a certificate from the Registo Nacional de Testamentos confirming no Portuguese will exists (€25, 2-4 weeks by post)
- Proceed with the Habilitação de Herdeiros, identifying all heirs according to the intestate succession hierarchy
- Accept that Portuguese forced heirship rules will determine the distribution of all Portuguese-situs assets
The expat estate settlement guide walks through the complete intestate process, including sample succession calculations for common family configurations and how to handle the partition when heirs are spread across multiple countries.
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