THE SURVIVING SPOUSE AS LEGITIMATE HEIR: A RIGHT OR A CHOICE?
Under the current Portuguese law, the surviving spouse is the heir of the deceased spouse, except if they are legally or administratively separated.
In order to change this «mandatory capacity» of the spouse, the Socialist Party presented a Draft Law (no. 781/XII) on 20 February 2018 which would allow couples planning to marry to determine whether or not they want the other person to be there heir.
Arguing that the current inheritance rules place excessive conditions on the freedom of choice of engaged couples, especially those who already have children from another relationship, this Draft Law would make it possible - by means of a prenuptial agreement choosing the marital regime of separation of property - for engaged couples to (reciprocally) renounce the capacity of being the legitimate heir. This renunciation does not have to be absolute and can be made on condition that certain people survive the deceased spouse.
This Draft Law is a different political choice to the one currently in force and it is based on the understanding that - in view of the numerous forms that families take today - it is desirable to give individuals greater freedom to determine who their heirs will be.
We note that there are many differences in succession (inheritance) law across Europe. There are legal systems in which there are no legitimate heirs and the testator is free to dispose of their property as they see fit (as happens, for example, in England), and systems in which there are legitimate heirs, with no possibility for them to renounce this position. There are also systems in which renunciation possible, for example, the German system in which all the heirs (and not only the spouse), may renounce their right to an inheritance in advance.
The Socialist Party's Draft Law does not remove all protection from the spouse, because it allows amounts to be given to them by the other spouse, by way of gifts or legacies, up to the share of the inheritance that would correspond to their legitimate share if they had not renounced it. The Draft Law does not make any specific provision, but one can safely assume that amounts can be given up to the limit of the legitimate share, plus any available share, because the testator always has complete freedom to leave the available share to whoever he or she sees fit, without limitations.
Under the terms of the draft law, any spouse who renounces their legitimate...