Inheritance Rights of a Surviving Spouse in Portugal: A Guide for Expats

In brief: Since 2018, a surviving spouse in Portugal is a legitimário — a protected heir who cannot be disinherited of their minimum share. The spouse also benefits from full exemption from inheritance tax and a right to remain in the family home. This guide explains what this means in practice for expats.

The 2018 Reform: What Changed for Surviving Spouses

Before 2018, the surviving spouse in Portugal was a herdeiro legítimo — a legitimate heir who inherited in the absence of descendants or ascendants, but who did not have a constitutionally protected minimum share. The Law 48/2018 of 14 August 2018 upgraded the spouse to herdeiro legitimário status.

This means the surviving spouse is now entitled to a quota indisponível — a mandatory protected share that the testator cannot override by will. The testator retains freedom of disposition only over the quota disponível (the remainder after protected shares are allocated).

Protected Shares: How the Estate Is Divided

The quota indisponível for a surviving spouse depends on who else survives:

Spouse + children: the spouse and children together are entitled to at least two thirds of the estate. The spouse's share within this two-thirds depends on the number of children — a notary will calculate the exact entitlement.

Spouse + parents (no children): the spouse and parents together are entitled to at least two thirds of the estate.

Spouse alone (no children, no parents): the spouse is entitled to at least half of the estate.

This means a testator in Portugal — regardless of nationality — cannot leave their entire estate to a charity, a friend, or a new partner while cutting out a surviving spouse. Any will provision that violates these rules is subject to inoficiosidade (reduction to comply with the protected share).

Right to the Family Home (Direito de Habitação)

Beyond the financial share, the surviving spouse has a specific right under Portuguese law: the direito de habitação — the right to continue living in the family home for life, even if they do not own it outright as part of the inheritance.

This right applies to the house that was the couple's primary residence and is particularly significant for expat couples who have purchased property in Portugal. Even if the property passes to children under the will, the surviving spouse cannot be forced to leave.

Inheritance Tax for Surviving Spouses in Portugal

Portugal's inheritance tax (Imposto do Selo at 10%) is one of the most generous in Europe for close family members. Surviving spouses are completely exempt — as are children, grandchildren, parents, and grandparents.

The 10% Imposto do Selo applies only to collateral heirs (siblings, aunts, uncles, cousins) and non-relatives. This makes Portugal an attractive succession environment for expat couples — there is no inheritance tax to plan around for spousal inheritance.

Non-resident spouses inheriting Portuguese assets are subject to the same exemption. However, they may still have tax obligations in their own country of residence on the same assets — a point to verify with a cross-border tax adviser.

Unmarried Partners: A Different Situation

An unmarried partner (união de facto) in Portugal has some — but not all — of the rights of a spouse:

• The right to remain in the shared home for up to five years after death (extendable if there are minor children)
• The right to inherit in the absence of legitimate heirs (descendants, ascendants, siblings)
• No tax exemption by default — a partner is not a direct heir for Imposto do Selo purposes, though some regions have specific rules

Critically, the união de facto partner is not a legitimário — they can be excluded entirely by a will. If you are an unmarried expat couple in Portugal, making a Portuguese will that explicitly provides for your partner is essential.

When EU Regulation 650/2012 Applies

The law governing your estate in Portugal depends on EU Regulation 650/2012 (Brussels IV):

• Default: Portuguese succession law applies if you were habitually resident in Portugal at death
• Election: EU citizens can choose the law of their nationality — meaning a Dutch national can elect Dutch succession law, which has different forced heirship rules
• British nationals: the Brussels IV election mechanism does not apply automatically post-Brexit; the applicable law is determined by Portuguese private international law

The choice of applicable law directly affects the spouse's protected share. Dutch law, German law, and French law all have their own forced heirship frameworks, different from Portugal's. Choosing the law of your nationality could increase or decrease the spouse's protected share depending on which country you are from.

Practical Steps for Expat Spouses

1. Make a Portuguese notarial will that explicitly reflects your wishes within the forced heirship framework
2. Register the will with the Registo Central do Testamento (the notary does this automatically)
3. If unmarried, make a will providing for your partner — they have no protected share by default
4. Check your tax position in your home country — the Portuguese exemption does not prevent tax exposure elsewhere
5. Organise your digital assets separately from your legal will using Sucesio — your spouse should know where to find accounts, passwords, and crypto assets, not just what the will says

This article is provided for informational purposes only. For specific advice on Portuguese succession law, consult a qualified Portuguese notary or lawyer.