Getting married and not being an heir, is that possible?

It was in force in the Portuguese succession regime, before the referred legislative change, the rule that, regardless of the property regime applicable to the marriage, spouses would always be legitimate heirs of each other.

On 1st of September 2018, an amendment to the Civil Code came into force as a result of Law no. 48/2018, published on 14th August, which provides for the possibility of waiving this imposing figure of being a legitimate heir, in the antenuptial convention, provided that the property regime in chosen is the separation of property regime.

Thus, in addition to the division of estates applicable during life through the regime of separation of property, the possibility of division after death is now also provided for.

This has been a recurrent application in families whose wealth is considerable and who want it to remain in consanguinity, removing the spouse from property interests.

The renunciation may be conditioned to the survival or not of successors of any class (children, parents, brothers, uncles…), as well as of other persons, the condition not requiring reciprocity.

The law also intended to safeguard some situations, similarly to what occurs in the de facto union regime, where the family home is owned by the deceased spouse and the surviving spouse may remain there for five years, as the holder of a property right and the right to use the property. This period may be extended by determination of the Court, in case of “special need” of the widower or widower.

If, however, there is no extension, after five years, the surviving spouse will have the right to remain in the property as a tenant under general market conditions. It should be noted that if the surviving spouse has already reached the age of 65 at the time of the opening of the succession, the right to live in the property is for life.

It should be noted that even if the spouses renounce the status of heirs, the surviving spouse’s entitlement to maintenance and social benefits on death will subsist.