Forced heirs in Portugal: the reserved portion, the disposable portion and each share

Freedom to make a will is limited here

There are countries where a person can leave their whole estate to anyone they please. Portugal is not one of them. The Civil Code reserves part of every estate for a narrow group of relatives, and that part is untouchable: no will, no lifetime gift and no agreement between the parties can reach it.

Article 2156.º defines it in a single sentence: the legítima is the portion of assets the testator may not dispose of, because it is legally destined for the forced heirs⁵. From there, everything worth knowing about a Portuguese estate comes down to three questions: who those heirs are, how much is reserved for them, and what is left for everyone else.

Who the law protects

The answer to the first question is short. Article 2157.º says the forced heirs are the spouse, the descendants and the ascendants, in the order and under the rules laid down for intestate succession⁵. Nobody else is on that list.

It is worth noticing who is left off it. The deceased's siblings are not forced heirs, even though they may end up inheriting when nobody else survives. Nephews and cousins are not either. And the unmarried partner, however many years the relationship lasted, does not even appear in the order of succession in the Civil Code: they have separate protection over the family home and may receive assets by will, but they do not succeed by operation of law.

Nor is the spouse a forced heir if, at the date of death, they were already divorced or judicially separated by a final judgment. Article 2133.º, n.º 3 excludes them expressly¹.

The order in which people inherit

Article 2133.º, n.º 1 sets the order in which heirs are called: first the spouse and descendants; then the spouse and ascendants; then siblings and their descendants; then other collateral relatives up to the fourth degree; and finally the State¹.

The rule with the widest consequences is that a nearer class excludes the next one entirely. A single child is enough to shut every grandparent, uncle and sibling of the deceased out of the estate. There is no sharing between classes: either you are in the class that is called, or you receive nothing.

The spouse is the interesting exception. Number 2 of the same article says the surviving spouse belongs to the first class of heirs, unless the deceased died without descendants but left ascendants, in which case they belong to the second¹. In other words, the spouse always joins whoever is at the front of the queue, and is only alone when there are neither descendants nor ascendants.

Within each class two simple rules operate: the nearer degree takes precedence over the more remote, and those on an equal footing divide equally. That is why, with no descendants and no spouse, the ascendants' third goes entirely to the parents if either is still alive, and only in their absence does it pass down to the grandparents.

How much the reserved portion is worth

The Civil Code does not fix a single figure. It fixes four, spread across three articles, and this is where most of the confusion starts.

Three articles sit behind that table. Article 2158.º covers the spouse alone: the reserved portion of the spouse, where they do not inherit alongside descendants or ascendants, is half the estate⁶. Article 2159.º covers children: the reserved portion of the spouse and the children together is two thirds of the estate, and, where there is no surviving spouse, the children's reserved portion is half or two thirds according to whether there is a single child or two or more⁶. And article 2161.º covers ascendants: two thirds alongside the spouse, and, with neither descendants nor spouse, half or one third according to whether the parents or the ascendants of the second degree and beyond are called⁶.

Two readings of that table are rarely written down anywhere.

The first is that the reserved portion never exceeds two thirds. However many forced heirs there are, at least a third of the estate always remains free to dispose of. Anyone who wants to leave something to a charity, a godchild or one particular child always has room to do it.

The second is that the number of children barely matters. The law only distinguishes one child from two or more, and even that distinction vanishes if there is a spouse, because then the reserved portion is two thirds in every case. A person with seven children has exactly the same disposable portion as a person with two. What changes is each child's slice within the reserved portion, not the size of the reserved portion.

How the estate is divided when there is no will

With no will there is no disposable portion to fill, and the whole estate is shared out under the rules of intestate succession.

Where there is a spouse and children, article 2139.º, n.º 1 requires the division to be per head, splitting the estate into as many parts as there are heirs, and adds that the spouse's share can never be less than a quarter of the estate². With one child, that is two halves. With two children, three thirds. With three children, four quarters, and the spouse lands exactly on their floor.

It is at the fourth child that the rule changes behaviour. A per-head division would give a fifth to each of the five heirs, that is 20%, and that is less than the guaranteed quarter. The floor then kicks in: the spouse receives 25% and the four children divide the remaining 75% between them, which is 18.75% each. The more children there are, the thinner each slice becomes, but the spouse stays on the quarter.

With no spouse, number 2 of the same article settles the matter in one line: the estate is divided between the children in equal parts².

Where there are no descendants, article 2142.º applies: two thirds belong to the spouse and one third to the ascendants; and, in the absence of a spouse, the ascendants are called to the whole estate³. Finally article 2144.º closes the picture: in the absence of descendants and ascendants, the spouse is called to the whole estate⁴.

What value the sum is done on

This is the part that produces most mistakes in practice, because the figure to use is neither a bank balance nor the sum of the assets in plain sight.

Article 2162.º, n.º 1 is explicit: in calculating the reserved portion, regard must be had to the value of the assets in the deceased's estate at the date of death, the value of assets given away, expenses subject to collation, and the debts of the estate⁷. That is three corrections to the apparent figure. Debts are subtracted. Lifetime gifts are added back, precisely so that nobody can hollow out the reserved portion by distributing their property before dying. And certain sums advanced to descendants also return to the pool.

Before any of that, though, comes a step that has nothing to do with succession at all. If the deceased was married under community of acquisitions or general community, half of the common property already belongs to the surviving spouse in their own right. It is called the meação, it is not inheritance and it is divided with nobody. A couple with €400,000 of common property leaves an estate of €200,000, and it is on that €200,000 that the reserved portion is calculated. Adding the meação to the estate is the quickest way to double the whole sum by mistake.

What a will cannot do

The protection of forced heirs does not stop at the value. Article 2163.º adds that the testator may not impose burdens on the reserved portion, nor designate the assets that are to make it up, against the heir's will⁸. It is not possible, then, to leave a child their share of the reserved portion on condition that they care for someone, nor to force them to take it in a particular plot of land they do not want.

And if a will or a gift crosses the line? The disposition is not void: it is reduced. The forced heirs can ask for the reduction of excessive dispositions under articles 2168.º and following, which trims whatever is needed to restore the reserved portion. The order is the one you would expect: testamentary dispositions are reduced first and lifetime gifts only afterwards, starting with the most recent and working backwards.

When an heir died first

If one of the children died before the deceased but left descendants of their own, those descendants are not left out. Representation applies: the grandchildren take their parent's place and divide the share that would have gone to them.

To do the arithmetic, the simplest approach is to count that line as a single child, work out the fraction that belonged to it, and only then split it within the branch. If an estate was to be divided between three children and one of them died leaving two children, there are still three thirds: two go whole to the surviving children and the third splits into two sixths for the grandchildren.

What about tax?

Portugal has had no inheritance tax since 2004. What is paid today is stamp duty, and the good news for anyone reading this article is that article 6.º, n.º 1, point e) of its code exempts the spouse, the descendants and the ascendants. That is, it exempts exactly the same circle of people for whom the reserved portion is kept. A child inheriting from a parent pays nothing for inheriting.

Anyone inheriting by will from outside that circle, such as a sibling, a nephew or a friend, pays 10% on the value received. It is the same item 1.2 of the general table that applies to gifts, and it can be estimated in the gift tax calculator.

Tax appears again, for a different reason, when the heirs decide to sell. There it is no longer stamp duty but income tax on the capital gain, and the sum has an important quirk: the acquisition value is the property's tax value at the date of death, and the acquisition date is the death, not the deceased's own purchase. That calculation is done in the inherited property capital gains calculator.

Finally, there are estates where the spouse keeps the usufruct of a property and the children the bare ownership. There you need to know what each of the two rights is worth, and the value comes from an age table explained in usufruct and bare ownership.

Doing the sums

The inheritance share calculator applies every rule in this article. Enter the value of the estate, already net of debts and without the meação, say who survived, and it returns the reserved portion, the disposable portion and what each heir receives in the two scenarios that matter: with no will, and with a will that uses up the disposable portion.