Inheritance Law in Brazil for Foreigners

Brazilian inheritance law operates on principles fundamentally different from the US, UK, Canada, or Australia. The biggest shock: you cannot freely distribute your Brazilian assets by will. Forced heirship reserves 50% of the estate for mandatory heirs regardless of what any will says — and this rule applies to every asset on Brazilian soil, no matter the owner's nationality.

Forced Heirship (Legítima)

Under Articles 1,845-1,846 of the Brazilian Civil Code, exactly 50% of a deceased person's estate — called the legítima — is legally reserved for "necessary heirs" (herdeiros necessários):

1. Descendants (children, grandchildren) — first priority
2. Ascendants (parents, grandparents) — if no descendants exist
3. Surviving spouse — always a necessary heir under the 2003 Civil Code revision

The other 50% (the parte disponível or "disposable portion") can be distributed according to a will. But no will, no matter where it was written or what law governed it, can override the legítima for assets located in Brazil.

Practical implication: If a British expat dies in Brazil owning an apartment worth BRL 600,000 and their will leaves everything to a non-family charity, Brazilian law requires BRL 300,000 of that apartment's value to go to their children or parents. The charity receives at most BRL 300,000.

ITCMD: The State Inheritance Tax

The Imposto sobre Transmissão Causa Mortis e Doação (ITCMD) is a state-level transfer tax applied to every inheritance. Key characteristics:

• Rates vary by state: 1% to 8% of the market value of assets
• Progressive in some states: São Paulo charges a flat 4%; Rio de Janeiro uses a progressive scale up to 8%
• Assessed on each transfer: Every asset transferred to each heir is taxed separately
• Must be paid before transfer: No bank release, property transfer, or vehicle title change happens until ITCMD is fully paid

For foreign heirs: The tax applies regardless of where the heir lives. A US-based child inheriting a Brazilian apartment still owes ITCMD to the state where the property is located.

Cross-Border Estate Complications

Exclusive Territorial Jurisdiction

Article 23, Section II of the Brazilian Code of Civil Procedure grants Brazilian courts exclusive jurisdiction over assets on Brazilian territory. This means:

• A completed US/UK/AU probate does not transfer Brazilian assets
• Parallel probate in Brazil is mandatory for any local asset
• Brazilian courts will not recognize or enforce a foreign probate decree for local property

Foreign Wills

A foreign will is recognized in Brazil — but only for the "disposable" 50%. To be used in Brazilian probate, the will must be:

1. Apostilled in the country of origin
2. Translated by a Brazilian Tradutor Público Juramentado (sworn translator)
3. Submitted through judicial probate (wills require judicial, not extrajudicial, probate)

Double Taxation

Brazil has no inheritance tax treaty with the US, UK, Canada, or Australia. Heirs may face:

• ITCMD in Brazil (on Brazilian assets)
• Estate tax or inheritance tax in the home country (if that country taxes worldwide assets)

Some limited relief exists through domestic foreign tax credits, but professional tax advice spanning both jurisdictions is essential for estates above US$50,000.

Marital Regime Impact

Brazil's marital property regimes (regime de bens) directly affect inheritance calculations:

• Partial community property (comunhão parcial de bens) — default regime. Assets acquired during marriage are split 50/50; the surviving spouse inherits from the deceased's share
• Total community property (comunhão universal) — all assets are communal; spouse takes 50% as property right, then inherits from the deceased's remaining share
• Total separation (separação total) — each spouse owns their assets individually; surviving spouse inherits as a necessary heir from the deceased's estate

The marital regime was set at the time of marriage (or by prenuptial agreement). Foreign marriages are generally recognized but may require judicial determination of which regime applies.

Practical Steps for Foreign Families

1. Identify all Brazilian assets (bank accounts, property, vehicles, investments)
2. Determine the applicable ITCMD rate based on the state where each asset is located
3. Map the forced heirs — who qualifies as a necessary heir under Brazilian law
4. Retain an OAB attorney experienced in cross-border estates
5. Begin probate within 60 days to avoid late-filing tax penalties

Navigating the Full Process

The Emergency Guide for Death in Brazil covers the inheritance law framework in detail — including ITCMD calculations by state, the forced heirship allocation method, and a step-by-step process for parallel cross-border probate proceedings.

See more Brazil guides →