(especially the case of separation of assets)
As previously mentioned by the author (see https://www.tofadvogados.com/post/a-aquisi%C3%A7%C3%A3o-de-bens-na-const%C3%A2ncia-do-matrim%C3%B3nio-com-bens-pr%C3%B3prios-e-outras-nuances ):
In our legal system and in the context of marriage, the spouses can freely determine the property regime to be in force during the marriage.
Specifically, there are three different property regimes: a) general communion regime (cf. arts. 1732 to 1734); b) acquired communion regime (cf. arts. 1721 to 1731); and c) separation regime (cf. arts. 1735 and 1736).
In general terms, with regard to these regimes, it should be specified that if no prenuptial agreement has been signed to determine the applicable regime (or in the event of its expiry, invalidity or ineffectiveness), the supplementary regime of communion of acquisitions will apply (cf. art. 1717), which is why this is the predominant regime.
One of the exceptions to the choice of regime will occur if one of the spouses is sixty years old or older, in which case the mandatory regime of separation of property will apply (cf. art. 1720.º n.º 1 al. b)).
Now,
With regard to succession, a brief distinction must be made between legitimate heirs and legitimate heirs, and in this case it is the legitimate succession that is relevant.
According to art. 2156, the “legitimate” corresponds to the portion of the estate that the testator cannot dispose of, as it is destined for the legitimate heirs.
Under the terms of Article 2157, legitimate heirs are the spouse, descendants and ascendants.
Thus,
Despite the fact that a prenuptial agreement has been signed determining that the applicable matrimonial property regime is separation of property, the spouse does not lose this status as a spouse or as a legitimate heir.
As a result, such a marriage regime (separation of property) is essentially relevant in the context of divorce/sharing of property.
However,
It is not because the spouse is a legitimate heir that he or she cannot be deprived of the reserved portion.
Although it is not directly related to the marriage regime entered into, in general terms, the author of the succession may, by will, disinherit the spouse (or other legitimate heir), provided that the legal requirements are met, which are as follows:
“a) The person entitled to inheritance has been convicted of a felonious crime committed against the person, property or honor of the person entitled to inheritance, or of his or her spouse, or of any descendant, ascendant, adoptee or adopted person, provided that the crime carries a penalty of more than six months' imprisonment;
b) The successor has been convicted of slanderous accusation or false testimony against the same persons;
c) The person entitled to inheritance has, without just cause, refused to pay maintenance to the person entitled to inheritance or to his or her spouse.”
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In short, the marriage regime per se is completely irrelevant in the context of the succession/sharing of the deceased's assets, since the relevant status is that of spouse, which will remain.
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