Donations are often made with the intention of anticipating the division of an inheritance. However, when considering a donation, the applicable inheritance rules (among others) must be taken into account. In Portugal there are certain rules which aim to ensure that the share of the inheritance to which each heir is entitled under Portuguese law is respected.
Thus, when making a donation during one’s lifetime to a legitimate heir, one must ask oneself whether one wants the donation to represent an advance on the inheritance (donation on the unavailable share), or, if the intention is to benefit one heir to indicate that the donation is made on the available share or with “exemption from collation”.
When the donation is made on the available share, the legitimate heir will be exempted from making the equality of the property received with the other heirs by returning to the estate the property given to him during the deceased life.
An exception to the above applies where there are no other assets to be shared and the legitimate heir can claim an equal share in the distribution.
In addition to the inheritance rules applicable in Portugal, certain donations may be invalid, for example donations between spouses where the matrimonial regime is imperatively that of separation of property (i.e. where the separation of property regime is imposed, for example when a person marries at the age of 60).
In order to prepare your estate and avoid nullities (or conflicts between relatives), you may consider drawing up a will comprising several legacies or “dividing your property in life” where all or part of your property is shared to one or more heirs in equality, with the consent of the others. The purpose of this act is to ensure the equality of the heirs. If applicable, please note that in the will you can choose to apply the law of succession between the law of your place of residence and the law of your nationality, according to which you have closer ties and you can determine which is more advantageous according to your wishes.
Kindly note that any donation can always take into consideration the reservation of the right of usufruct of the property, being able to enjoy it until your death.