Since September 2018, the law has provided that both spouses may, prior to the celebration of marriage, mutually renounce the status of legal heir of each other. For this to occur, it is necessary that in the prenuptial agreement, both spouses (because renunciation cannot be unilateral) proceed with this same renunciation, in accordance with subparagraph c) of Article 1700 of the Civil Code.
This renunciation may be subject to conditions, such as whether certain classes of heirs exist at the time of death (e.g., descendants, ascendants, siblings, and descendants), and it does not prejudice the right of the surviving spouse to death benefits or to receive support from the estate of the deceased spouse. In cases where the matrimonial home is owned by the deceased spouse, the other spouse may remain in the home for a period of at least five years, with the possibility of exceptional extension by the court. If the surviving spouse is 65 years of age or older at the time of death, the right to remain in the home is lifelong. If not, after the period of 5 years (or any exceptional renewal decreed by the court), the spouse may remain in the former matrimonial home as a tenant, subject to market conditions.
The law reserves the possibility of mutual renunciation in cases where the spouses choose the regime of separation of property as applicable to the future marriage and in cases where this is the mandatory regime, which will always occur when marriage is celebrated without prior marriage proceedings or when one of the spouses has reached sixty years of age at the time of marriage.
It is noteworthy, however, that despite the renunciation of the status of legal heir of the spouse, the law tempers these effects by allowing for gifts between renouncing spouses if the value of such gifts does not exceed the portion each would be entitled to from the other’s estate had there been no renunciation. Indeed, paragraph 2 of Article 2168 of the Civil Code now provides that gifts in favor of the surviving spouse who has renounced inheritance under subparagraph c) of paragraph 1 of Article 1700 are not deemed excessive, up to the portion of the inheritance corresponding to the surviving spouse’s legal share had the renunciation not existed. In other words, only the renunciation of the status of legal heir of the spouse is at issue, while the right to make and receive gifts during life (subject to situations of mandatory separation of property, which do not allow gifts between spouses) or upon the other spouse’s death remains intact, without necessarily being deemed inadmissible or offensive to the so-called “legitimate” share of legal heirs, i.e., the portion of the estate legally reserved for them.
Furthermore, the renunciation regime under review applies only to the legal inheritance, thus nothing prevents the spouse from being appointed as heir of the disposable portion by testament, or in the absence of a will, from the surviving spouse succeeding as a legal heir pursuant to Articles 2131 and following of the Civil Code.
The spouse’s position as a potential heir was strengthened with the Reform of the Civil Code of 1977, as they acquired the status of legal heir and became part of the first two classes of legitimate successors alongside descendants and ascendants. Since then, the spouse succeeds automatically, except in cases of disinheritance or unworthiness. The legislative amendment in 2018 changed this paradigm but did so with the aim of addressing those increasingly common cases, especially given the increase in the average life expectancy of the community, where two people intend to marry when they already have children from previous relationships, without the spouse, by acquiring the status of legal heir directly through marriage, undermining the expectations and interests of the other’s descendants. In this sense, the legislative amendment of 2018, enacted by Law No. 48/2018 of August 14, effectively expanded the scope of the constitutional right to marry and establish a (new) family based on full equality.
