EU Succession Regulation 650/2012 and Portugal: What UK Families Need to Know

When a British person who was living in Portugal dies, a question arises that most families do not expect: which country's inheritance law applies to their estate? The answer since 2015 has been shaped by EU Succession Regulation 650/2012 — a regulation Portugal follows but the UK never adopted.

The result is a quiet conflict between two legal systems that can override what the deceased's UK will says, redistribute assets among heirs, and create outcomes the family never anticipated.

What the Regulation Does

EU Succession Regulation 650/2012 (sometimes called Brussels IV) replaced the patchwork of national rules that previously governed cross-border inheritance within the EU. Its core principle: the law of the country where the deceased was habitually resident at the time of death governs the entire estate.

Portugal applies this regulation. The UK does not — it opted out before Brexit and continues to apply its own private international law rules.

For a British person who was habitually resident in Portugal at the time of death, Portugal treats Portuguese succession law as the default governing law for their worldwide estate — including UK assets, in theory. In practice, UK courts apply UK law to assets situated in England and Wales, so the regulation's reach into UK-based property is limited. But for Portuguese assets — property, bank accounts, investments, vehicles — Portuguese succession law applies unless the deceased made a specific choice otherwise.

Why This Matters: Forced Heirship

Portuguese succession law includes forced heirship (legítima). Under this rule, a fixed share of the estate is reserved by law for the deceased's closest family:

• If there is a surviving spouse and children: two-thirds of the estate is reserved for them
• If the spouse is the only compulsory heir: one-half is reserved for the spouse
• If there are no descendants but there is a spouse and relatives in the ascending line: two-thirds is reserved
• If there are children but no surviving spouse: one-half is reserved for one child, or two-thirds for two or more children

The deceased can only freely dispose of the remaining portion (the quota disponível). A UK will that leaves everything to a friend, a charity, or one child to the exclusion of others may be partially overridden by Portuguese forced heirship rules — but only for the Portuguese-situated assets.

This catches families off guard. A British person who wrote a standard UK will leaving everything to their spouse assumes the will controls all their assets. If they died habitually resident in Portugal and owned Portuguese property, the forced heirship rules apply to those Portuguese assets regardless of what the UK will says.

The Opt-Out: Choosing UK Law

The EU Succession Regulation includes a critical escape clause. Article 22 allows a person to choose, in their will, that the law of their nationality (rather than habitual residence) should govern their succession.

A British person living in Portugal can include a choice-of-law clause in their will stating that English law (or Scots law, or the law of Northern Ireland) should govern the succession of their entire estate. If this clause exists, Portuguese authorities must honour it — Portuguese forced heirship rules no longer apply to their Portuguese assets.

This opt-out must be explicit and written into the will. The clause should identify the chosen law under EU Regulation 650/2012. Many UK solicitors drafting wills for clients who live in or own property in Portugal now include this clause as standard.

If the deceased did not include a choice-of-law clause, Portuguese succession law applies to their Portuguese assets by default.

Habitual Residence Is a Factual Test

"Habitual residence" is not the same as domicile, tax residence, or nationality. It is a factual assessment based on where the person actually lived — the centre of their daily life, social ties, and personal interests.

A British retiree who sold their UK home, moved to the Algarve, registered with a Portuguese GP, and built a social life in Portugal is habitually resident in Portugal. A British tourist who died on a two-week holiday is not.

The grey area is the part-year residents: people who split their time between the UK and Portugal. Portuguese courts will look at the totality of the evidence — where they spent the majority of their time, where their post was delivered, where their closest family members lived, which country's healthcare system they used. There is no fixed-day threshold.

Practical Impact for UK Families

If the deceased was habitually resident in Portugal, did not include a choice-of-law clause in their will, and owned Portuguese assets, the estate settlement involves:

1. Applying Portuguese forced heirship to the Portuguese assets — which may redistribute them differently from what the UK will specifies
2. Running two parallel estate tracks — UK probate for UK assets under UK law, and Portuguese estate settlement for Portuguese assets under Portuguese law
3. Potential disputes — if a UK will disinherits a child or leaves unequal shares, the disinherited or disadvantaged heir can challenge the Portuguese portion under forced heirship rules

For deaths of British tourists (not habitually resident in Portugal), the regulation is less relevant — UK law governs the succession, and Portuguese authorities apply it because the habitual residence was in the UK.

The British Person Dies in Portugal — Family Emergency Guide includes a decision tree for determining which succession law applies and a checklist for the parallel UK/Portuguese estate tracks.