A valid marriage (one that is not voidable) is, in Portuguese law, a contract that binds two people and that is extinguished by divorce or by the death of one of the spouses. With death, a central question always arises: what is the inheritance and, if it exists, who are the heirs?
Until August 2018, after the marriage was celebrated, the spouses acquired, without the possibility of removal, the condition of legitimate heirs of each other. Therefore, when one of the spouses died, the other, in competition with the descendants, with the ascendants or alone, was always called to the succession.
Now, it happened that many marriages stopped taking place because one or both of the members of the couple understood that each one's own patrimony should not be inherited by the partner.
This situation was accentuated when couples had a family, previously constituted, and did not want the transfer of their assets, or part of them, to those who had contributed nothing to the acquisition of that heritage.
In order to facilitate the possibility of two people being able to marry without succession constraints, the law would be amended from September 1, 2018, establishing the possibility for the spouses to waive the condition of legitimate heir of the other, through a prenuptial agreement.
This possibility is only allowed if the property regime, conventional or mandatory, is the separation of property. Even so, the resignation only affects the succession position of the spouse, not affecting, in particular, the right to alimony of the surviving spouse, on the part of the heirs or legatees to whom the assets have been transferred, nor to social benefits.
Other surviving spouse guarantees that were not affected are:
– The possibility of one spouse to make a will in favor of the other, that is, the ineffectiveness of gifts in favor of the surviving spouse who has renounced the inheritance;
– Condition the renunciation of the survival of the successors of any class, as well as of other people.
One of the most important aspects is related to the family home, where the rights are guaranteed under the following conditions:
if the family home is owned by the deceased, the surviving spouse may remain in the home for a period of five years, as the holder of a real housing right and a right to use the contents, lapsed if the surviving spouse does not inhabit the house for more than a year, for reasons attributable to it.
In addition, the surviving spouse is not entitled to housing if they have their own house in the municipality of the family home. If it is Lisbon or Porto, it loses this right if it has its own house in the neighboring municipalities.
At the end of the term, that is, at the end of the five years in which they benefited from the right to housing, the surviving spouse has the right to remain in the property only as a tenant, under general market conditions.
However, if the surviving spouse has reached the age of 65 on the date the succession is opened, the right to housing is for life.
So, you already know: don't let the succession issues be a limitation to an eventual marriage. Get advice from a solicitor.
Author: Natércia Reiga is a solicitor and enforcement agent
Note: Article published under the partnership between the Sul Informação and the Order of Solicitors and Enforcement Agents
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