Following the previous article on de facto unions, I was asked several times to clarify whether a de facto partner has the same rights and benefits as a married couple.
Due to the increasing interest in the subject, I will basically try to answer two pressing questions:
– Does a de facto united person have the same rights and benefits as a married person?
– What are the advantages or consequences of opting for one regime or another?
Although these are not new issues at all, they still raise many questions.
In the previous article, it was explained, in a succinct way, what is the de facto union and what rights come from it.
The legal measures to protect the de facto union aimed to protect the de facto partner, especially in the event of the death of their life partner, preventing the survivor from being unprotected with regard to the use of the dwelling house, the maintenance of the lease or, for example, access to survivors' pensions.
These protective measures are necessary because the de facto unit does not have any inheritance rights, in view of not being a legal heir, placing him in the event of a disadvantaged situation.
It is never too much to remember what legal heirs are, that is, they inherit under any circumstance: spouses, descendants and ascendants. The law does not refer to the de facto united in the class of those who succeed.
In marriage, regardless of the regime applied, the spouse is always the heir. Those who live in a de facto union and who have living children or parents, these will be their heirs and not their partner, that is, their de facto partner. The de facto united person is left with the possibility of inheriting by will, which depends on the will of the other.
Regarding the equity situation of married people, it is never too much to clarify the inheritance rights of married people in separation of property.
The separation of assets regime, not being a supplementary regime, can and should be adopted as a way for each of the spouses, individually, to maintain the administration and disposal of their assets.
This regime excludes the administration of assets by the spouse who is not the owner, with the exception of the provision and encumbrance of the family home. This situation cannot be confused with the status of legal heir.
Even if the couple has opted for the separation of property regime, upon the death of one of the spouses, the other is always an heir, and may be heir to all the assets, if there are no living descendants or ascendants.
In the system of common ownership, the situation is different. In this regime, each spouse owns the assets acquired before the marriage, assets acquired through inheritance or acquired through donation.
Even so, the law grants a right to the other spouse, which, in a simplified way, can be called a "veto" right, that is, the law provides that the spouse who is not the owner is required to consent to the acts of disposition or encumbrance of the heir's assets, sometimes making it difficult for family projects to sell inheritance assets, as the spouse's consent is always required.
The great differences between de facto union and marriage lie in succession issues. When in doubt, look for a Solicitor who will help you choose the option suitable for your case.
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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