Caring for elderly parents can mean years of support, travel, expenses, sleepless nights and difficult decisions. Therefore, it is natural that many parents want to compensate the child who was more present, leaving him a larger part of the inheritance. In Portugal, this is possible, but not unlimited.
The essential rule is this: parents can benefit one child more than another, but they must respect the legitimate calling of legitimate heirs. According to the Civil Code, the legitimate property is the part of the assets that the testator cannot freely dispose of, as it is legally destined for the legitimate heirs. The spouse, descendants and ascendants are legitimate heirs, in the order provided by law, without prejudice to special situations, such as the reciprocal renunciation of the status of legitimate heir between spouses, admitted in a prenuptial agreement when the property regime is that of separation.
When there are children, they are legitimate heirs. If there is also a surviving spouse, the share of the spouse and children corresponds, as a rule, to two thirds of the inheritance. This means that only a third is available to be freely left to whomever the parents see fit, including the child who cared for them. If there is no surviving spouse, the children’s inheritance is half of the inheritance when there is only one child, or two-thirds when there are two or more children, as provided for in .
Will can benefit the caregiver child
The most direct way to leave more inheritance to the child who took care of his parents is to make a will, in the legal form. According to the Diário da República, a will is a formal, personal and revocable act, and a simple writing signed by the testator is not enough to produce this effect. Two or more people cannot also testify in the same act, so each parent must only have their own inheritance.
In this document, parents can determine that the available part of the inheritance be attributed to that child, as a form of recognition for the support provided. This solution does not take away from the other children the minimum share that the law guarantees them, but it allows the caring child to receive more than they would receive in an equal division.
In practice, imagine a couple with three children. One of them took care of his parents for years and his parents want to make it up to him. In the inheritance of each parent, if there is a surviving spouse and children, the unavailable portion will, as a rule, be two-thirds. The remaining third can be left to the child caregiver by will. Thus, this child will receive his/her legitimate share, just like his siblings, and also the available share that his parents decided to give him.
There may also be donations during life. Parents can donate money, goods or even a property to the child who follows them most closely. In the case of real estate, the donation is only valid if made by public deed or by an authenticated private document, under the terms of .
These donations must be made carefully, as they can be considered in the future sharing of the inheritance. The law provides for the so-called collation, that is, the restitution to the mass of the inheritance, to equalize the sharing, of the goods or values donated to descendants who succeed the donor. The Official Gazette explains that the collation is provided for in articles 2,104 et seq. of the Civil Code and aims precisely to equalize the sharing when living donations are made to descendants.
Therefore, when the intention is to effectively benefit a child, the donation should be well formalized and the exemption from donation should be expressly considered, when applicable. allows this exemption at the time of donation or later, and, if the donation is not applicable, the donation is allocated to the available quota. Even so, there is a limit: if the donation harms the legitimate rights of other heirs, it may be reduced after the death of the parents, at the request of the legitimate heirs or their successors.
It is also important to clarify another point: the simple fact that a child takes care of his parents does not, in itself, give him an automatic right to a greater part of the inheritance. The law does not grant automatic inheritance compensation to the child caregiver. For this to happen, parents must express this desire through a will or through legal acts made during their lifetime.
It is also not enough that the other children were less present to be excluded from the inheritance. Disinheriting a child is only possible by will, with express indication of the cause, and in exceptional situations provided for in article 2,166 of the Civil Code, such as certain crimes against the author of the succession or close relatives, slanderous denunciation, false testimony or unjustified refusal of due maintenance. The lack of visits, family distance or less participation in care, alone, are not enough to take away the legitimate status.
Thus, in Portugal, it is possible to leave more inheritance to the child who takes care of the parents, but within legal limits. The safest solution is to make a will, expressly defining that the available part goes to that child. When there are living donations, it is advisable that everything is documented, preferably with legal or notary support, to avoid future conflicts between siblings and ensure that the parents’ wishes are respected.
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