In addition to the repudiation of the inheritance - already discussed in https://www.tofadvogados.com/post/o-rep%C3%BAdio-da-heran%C3%A7a-notas-ess%C3%AAncias-%C3%A0-sua-compreens%C3%A3o - there is another way of “refusing” an inheritance.
We are talking about the renunciation of inheritance, or, to be more precise, the renunciation of the status of legitimate heir.
This mechanism met a long-standing need: to safeguard the situation of those who intended to marry but who already had children, namely from a previous relationship, as this would imply a “loss” to the inheritance to which the children would be entitled.
*
Thus,
Law no. 48/2018, of August 14, made it possible for both spouses to reciprocally renounce their status as legitimate heirs, i.e. heirs who are required by law to inherit a share of the estate, unless they do not wish to do so.
(see for further details https://www.tofadvogados.com/post/ir-relev%C3%A2ncia-do-regime-de-bens-de-casamento-para-efeitos-sucess%C3%B3rios-partilha-de-heran%C3%A7a )
Accordingly, “The reciprocal renunciation of the status of legitimate heir of the other spouse” became part of the range of dispositions on death considered lawful. - cfr. subparagraph c) of paragraph 1 of article 1700 of the Civil Code.
*
To this end, and as determined in Article 1700(3) of the Civil Code, it is an essential condition for its validity that the marriage regime in force is separation of property, so that, in practical terms, this “division” is extended until after death.
(see https://www.tofadvogados.com/post/ir-relev%C3%A2ncia-do-regime-de-bens-de-casamento-para-efeitos-sucess%C3%B3rios-partilha-de-heran%C3%A7a for further details).
*
In the event that the spouses regret having mutually renounced their status as legitimate heirs, even though the agreement is irrevocable, the spouses can always “reverse” the situation, namely through donation and a will.
This situation is safeguarded not only by the fact that there will always be a part of their inheritance that the deceased can dispose of as they see fit, but also by the fact that, under the terms of Article 2168(2) of the Civil Code, gifts to the surviving spouse are not unofficial, up to the part of the inheritance corresponding to the spouse's reserved share if they have not renounced the inheritance.
< However, we would remind you that a gift between spouses is null and void if the separation of property regime is in force (see art. 1762 of the Civil Code).
These situations are provided for in article 1720 of the Civil Code, and are always considered to have been contracted under this regime if the marriage is celebrated without precedence of a preliminary marriage procedure or by someone who has reached the age of sixty. >
*
Finally, it should be noted that the renunciation of inheritance may be conditional on the survival or not of successors of any class or of other persons, and it is not necessary for this condition to be reciprocal, as stipulated in Article 1707-A(1) of the Civil Code.
(cf. Article 2133(1) of the Civil Code: “The order in which heirs are called, without prejudice to the provisions of the adoption title, is as follows: a) Spouse and descendants; b) Spouse and ascendants; c) Siblings and their descendants; d) Other collateral up to the fourth degree; e) State.”).
*
It should be noted that the renunciation of inheritance only affects the “succession position of the spouse”, as mentioned above (cf. no. 2 of article 1707-A of the Civil Code).
In this way, the other rights relating to the status of “spouse” are safeguarded, in particular the rights to maintenance for the surviving spouse (see Article 2018(1) of the Civil Code, according to which “In the event of the death of one of the spouses, the widower is entitled to maintenance from the proceeds of the property left by the deceased”.
*
On the other hand, if the family home is owned by the deceased, the surviving spouse will have a set of rights that are unique to their condition, according to paragraphs 3 to 10 of article 1707-A of the Civil Code, including the fact that the surviving spouse will be able to live there for a period of five years, as the holder of a real right of residence and a right to use the contents, which may be for life if they have reached the age of 65 at the time of the opening of the succession.
(Regarding the right of pre-emption, see https://www.tofadvogados.com/post/o-direito-de-prefer%C3%AAncia , point 9)
Comments