Dying without leaving a will can generate doubts and family conflicts, but the Portuguese Civil Code clearly defines who has the right to inheritance and in what order. The process is known as “legitimate succession” and applies whenever a person dies without having left a written will for their assets.
In this case, there is no room for personal choices: it is the law that determines who receives and what percentage goes to each heir. Priority is always assigned to the closest family, following a hierarchy defined in the article.
Spouse and descendants first
The general rule is simple: the spouse and children are the first to inherit. Sharing is done per head (the spouse counts as one more), but the spouse’s share can never be less than 1/4 of the inheritance. If there is no surviving spouse, the children share among themselves in equal shares.
If there are only children and no surviving spouse, the assets are divided exclusively among direct descendants, children, grandchildren or great-grandchildren, in their own right or by representation, according to the line of succession.
When the deceased leaves a spouse but no children
In the absence of descending family members, the spouse and parents take first place in the inheritance. The spouse receives 2/3 and the ascendants 1/3 of the inheritance. Only in the absence of descendants and ascendants is the entire inheritance attributed to the surviving husband or wife.
Siblings and nephews can also inherit
If the deceased has no children, parents or spouse, siblings and nephews become entitled to inheritance (with right of representation by nephews, when applicable). In the absence of these, uncles and cousins (collaterals up to the 4th degree) may be called upon to inherit.
When there is no family member up to the 4th degree
If the deceased does not have a spouse, children, parents, siblings, nephews or other relatives up to the fourth degree, the estate is considered a vacant inheritance and reverts to the State, upon judicial declaration. The State becomes the legitimate heir and is also responsible for debts, within the scope of the special process for liquidating vacant inheritance.
Legitimate heirs: who cannot be excluded
Even when there is a will, there are family members who cannot be separated from the legitimate family (the unavailable part): the spouse, descendants and, in the absence of these, the ascendants. This protection is only granted in the foreseen cases of succession indignity or disinheritance.
When there is a de facto union
Anyone living in a de facto union is not an heir as a rule. The surviving partner can request specific rights, namely the real right to live in the family home (for 5 years or for a period equal to the duration of the union if it is longer than 5 years), which expires if he stops living in the house for more than one year. In matters of food (economic support), the request must be made within 2 years after the death, if necessary.
The role of the notary
Without a will, or even if there is one, the sharing can be done by agreement at the Inheritance Counter or at a notary’s office (with a public deed). If there is a disagreement, an inventory (notary or judicial) is used under Law No. 117/2019.
Importance of leaving a will
Specialists in inheritance law remember that making a will avoids conflicts and speeds up sharing, but it can never harm the legitimate heirs. The “available share” is the only part that can be freely disposed of.
Dying without a will does not mean leaving your assets to chance, it just means trusting the rules established by law. Still, succession planning is the best way to ensure that personal wishes are respected and to avoid future family disputes.
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