Portuguese Inheritance Law for Foreigners: Forced Heirship and How to Avoid It
Portuguese Inheritance Law for Foreigners: Forced Heirship and How to Avoid It
If you own property in Portugal or a family member died there, the inheritance rules are fundamentally different from what you're used to in the UK, US, or Australia. Portugal operates under a civil law system with forced heirship — meaning you cannot freely leave your estate to whoever you choose.
This catches English-speaking families off guard. A British retiree on the Algarve who assumed their English will would simply pass everything to their spouse may have inadvertently triggered a legal conflict that splits the estate among children, parents, and spouse according to Portuguese formulas.
How Forced Heirship Works (Herança Legítima)
Under Book V of the Portuguese Civil Code, certain close relatives are classified as "forced heirs" (herdeiros legitimários). They're legally entitled to a minimum portion of the estate — the legítima — which no will can override.
The reserved portion depends on who survives the deceased:
| Surviving Heirs | Reserved Portion (Legítima) | Disposable Portion |
|---|---|---|
| Spouse + children | Two-thirds (66.6%) | One-third |
| Spouse only (no children or parents) | One-half (50%) | One-half |
| Children only (no spouse) | One-half to two-thirds | Remainder |
| Parents only (no spouse or children) | One-half (50%) | One-half |
| Spouse + parents (no children) | Two-thirds (66.6%) | One-third |
The disposable portion (quota disponível) is the only part you can freely assign in a will. Everything else is automatically divided among forced heirs according to the Civil Code's formulas.
The Brussels IV Escape Route
EU Regulation 650/2012 — commonly called Brussels IV — changed the game for foreign nationals living in Portugal. Under this regulation, the law that governs your succession is, by default, the law of your last habitual residence at the time of death.
For a British national living in Portugal, that means Portuguese forced heirship applies automatically unless they take a specific step: electing the law of their nationality in a valid will.
A properly drafted election clause states that succession should be governed by the law of the testator's country of nationality — English law, for instance, which grants full testamentary freedom. Portuguese courts and registries will honour this election, bypassing forced heirship entirely.
What the Election Requires
- The election must be explicit and unambiguous in the will
- It must name the law of nationality, not just "English law" generically
- The will must be valid under both Portuguese form requirements and the elected national law
- A Portuguese notary can draft a local will containing this election alongside your existing home-country will
What Happens Without an Election
If no election is made, Portuguese law governs the succession of all assets located in Portugal — regardless of the deceased's nationality. A UK citizen who dies in Portugal without an election clause in their will has their Portuguese property distributed according to the forced heirship table above, even if their English will says otherwise.
Unmarried Partners: The Dangerous Gap
Cohabiting partners (união de facto) do not qualify as forced heirs under Portuguese law. An unmarried partner has zero automatic inheritance rights unless:
- They've been cohabiting for at least two consecutive years
- Their união de facto is formally registered with the local Junta de Freguesia or declared by court order
- A valid will explicitly names them as a beneficiary
Even with a registered união de facto, the surviving partner's inheritance rights are limited compared to a married spouse. Without a will, the deceased's estate passes entirely to biological family — children, parents, or siblings — bypassing the partner completely.
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The Dual-Will Strategy
Estate planners working with expats in Portugal typically recommend a dual-will approach:
Will 1 (Portuguese): Drafted by a Portuguese notary, covering all Portuguese-situs assets (property, local bank accounts, vehicles). Contains the Brussels IV election clause if desired. Written in Portuguese, immediately executable by local registries.
Will 2 (Home country): Drafted by a solicitor in your home country, covering all non-Portuguese assets. Must explicitly exclude Portuguese assets to avoid conflicts.
The key rule: the two wills must not contradict each other, and neither should revoke the other. A poorly drafted second will that uses broad revocation language ("I hereby revoke all previous wills") can accidentally invalidate the Portuguese will.
What This Means After a Death
If you're settling an estate in Portugal and the deceased was a foreign national, the first question is whether a Brussels IV election exists. Check:
- The Portuguese central wills registry (Registo Nacional de Testamentos) — request a certificate confirming whether a Portuguese will was registered
- Any home-country will for election clauses
- The deceased's records for a local notary's contact details
If no election exists, Portuguese forced heirship applies to all Portuguese assets. The complete expat estate guide walks through how to navigate the Habilitação de Herdeiros process under both scenarios — with and without a Brussels IV election — including document checklists and timeline requirements.
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