Introductory note/motivation
When an individual dies, the succession is opened and the call to succession is made (see articles 2031 and 2032 of the Civil Code).
Sometimes - whether for personal or family reasons, or even because the inheritance comes with more debts than its own value - there is no interest or will in accepting the inheritance.
Therefore, if there is no such interest and/or will, instead of accepting the inheritance, the heir can “refuse” it by repudiating it.
Thus,
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As to form,
Repudiation can only take place after the succession has been opened and must be in writing, preferably by means of a public deed (at a Notary's office) or an Authenticated Private Document (e.g. through a Lawyer), and must be in the latter form if there are immovable assets in the inheritance (cf. art. 2063 of the Civil Code).
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As for the effects,
As mentioned, repudiation is a refusal to accept an inheritance
The effects of repudiation, as with acceptance, are retroactive to the date of the opening of the succession (cf. art. 2062 and art. 2050(2) C.C.).
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With regard to the reaction of creditors and/or other interested parties, it should be noted that
a) The heirs are only responsible for the “strength” of the inheritance and can never be ordered to pay (or return) more than what they have received (cf. art. 2068 of the C.C.);
b) The deed of repudiation of the inheritance can be challenged in court (e.g. when it becomes apparent that a prior acceptance has taken place) (see Art. 17(1) of the Land Registry Code);
c) The repudiation of the inheritance may be annulled in the event of intent or duress (cf. art. 2065 of the C.C.); and that
d) Creditors may accept the inheritance on behalf of the repudiator within six months of becoming aware of the repudiation (see Article 2067(1) and (2) of the Civil Code).
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As for the rules, we highlight the fact that:
a)Those who have previously accepted the inheritance, expressly or tacitly, cannot repudiate, as these are expressly incompatible acts;
b) It is not possible to repudiate a part of the inheritance, except in the case of a will, in which case you can accept one part and repudiate another, or, if the heir does not want to be benefited before the others, namely by a will, they can repudiate the available share and accept the reserved share (see Article 2064(2) and Article 2055(1) and (2) of the Civil Code);
c) It is not possible to repudiate an inheritance under condition or term (see Article 2064(1) and Articles 270 and 278, both of the Civil Code);
d) If the repudiator is married, and not under the separation of property regime, unlike acceptance, in order to repudiate it will be necessary for the spouse to give their consent, which may occur in the same act (see Article 1683(1) and (2) of the Civil Code); and that
e) Like the acceptance of inheritance, repudiation is irrevocable (see articles 2061 and 2066 of the Civil Code).
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Finally, with regard to the other consequences/effects:
(1) The act of repudiation must state the existence of descendants, since they are the ones who will assume the position of the repudiator, succeeding him/her in his/her right, and it is therefore common practice for them all to repudiate at the same time.
(2) In the case of minors, the legal representatives must request authorization from the court to repudiate the inheritance on their behalf (see Article 1889(1)(j) of the Civil Code).
(3) When an inheritance is repudiated, its share will be distributed among the other heirs who are in the same class of succession and, if there are none, the subsequent heirs (see Article 2032(2) of the Civil Code).
(4) Finally, if the successor dies without having accepted or repudiated the inheritance, the right to accept or repudiate is passed on to the heirs (cf. art. 2058 of the Civil Code).
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Final note/Consultation:
To find out if there is a waiver, you can request a “certificate on the existence of a will, deed of renunciation or waiver of inheritance or legacy”, online or at the Central Registry Office in Lisbon.
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