Which country's law decides? Usually, the one you live in
Under the European succession rules (Regulation 650/2012), one law governs your whole succession: everything you own, not just the Portuguese house. By default that law is the law of the country where you are habitually resident when you die. Retire to Cascais and Portuguese law governs your estate, even if you keep a foreign passport, a foreign will and bank accounts in three other countries. There is a narrow escape clause for someone manifestly more closely connected to another country, but it is an argument for a courtroom, not a plan.
Do not confuse the form of a will with its effect. A will written at home is normally recognised in Portugal as formally valid: European law accepts a will that follows the rules of the place it was made, of your nationality, or of where you live. But a valid form does not buy you freedom. If Portuguese law governs the succession, the Portuguese reserved share applies to that home-country will just as it would to a Portuguese one.
The legítima: the share that is not yours to give
Portuguese law reserves a portion of every estate, the legítima, for the closest family: the spouse, the descendants and the parents or other ascendants, in that order. Those heirs are protected whether or not they are mentioned in a will, and a will that gives away more than the free share is simply cut back to fit. How much is reserved depends on who survives you:
| Who survives you | Reserved share | You may give freely |
|---|---|---|
| Spouse and children | Two thirds | One third |
| One child, no spouse | One half | One half |
| Two or more children, no spouse | Two thirds | One third |
| Spouse only | One half | One half |
| Spouse and parents | Two thirds | One third |
| Parents only | One half | One half |
If only grandparents or remoter ascendants inherit, the reserve falls to a third. The share is calculated on everything you own at death, plus most lifetime gifts brought back into the account, minus your debts. Giving the house to one child years early does not take it out of the calculation.
Put numbers on it. An estate of €900,000 with a spouse and two children has €600,000 reserved and €300,000 that a will can direct elsewhere. A will leaving everything to a new partner, a charity or a single child will be reduced until the protected heirs have their two thirds. And disinheritance barely exists: a protected heir can be cut out only in a will, only for a stated cause, and only on narrow grounds the Civil Code lists, such as a serious criminal conviction against the family or an unjustified refusal of legally due support. Falling out is not a ground.
The one choice the law gives you: your own national law
The same European regulation contains the counterweight. In your will you may choose the law of your own nationality to govern your whole succession instead of the law where you live. For a British, American, Australian or Brazilian owner, that choice usually restores the freedom to leave an estate as they wish, within whatever their own law allows. The choice has to be stated expressly in a will. It is a clause, not a form you file.
Three cautions before you rely on it. First, countries with more than one legal system have no single national succession law: an American's choice lands on the law of a particular state, and a Briton's on England and Wales, Scotland or Northern Ireland, in each case the system they are most closely connected to. Take advice on which one, and on what it actually does. Second, the choice changes the private law only. Portuguese tax on a death is charged exactly as before. Third, the clause has to sit in a properly made will, coordinated with any will you hold elsewhere, or it can create the very dispute it was meant to avoid.
First, check whose half the house is
Before any of this, there is a more basic question for married buyers. Couples who marry without a prenuptial agreement are married under Portugal's default regime, the comunhão de adquiridos, under which what either spouse acquires during the marriage is common property. Each spouse owns half of that common pool, the meação. When one dies, the survivor keeps their half outright. It is not inheritance, it cannot be willed away, and it never enters the estate. The estate is the deceased's own property plus their half of the common pool, and the reserved shares above are calculated on that.
A will that leaves "my house in Cascais" to a daughter leaves, at most, the half of it that was yours. If the house is common property, the other half already belongs to your spouse, and it was never part of your estate to give.
Foreign couples are not automatically under the Portuguese regime: your marriage keeps the property rules it started with, which is one more reason a lawyer should read your position as a whole rather than document by document. The point for every married buyer is the same. A Portuguese will can only dispose of what is actually yours.
What the tax office charges when someone dies
Portugal has no inheritance tax. What it charges instead is stamp duty on transfers for no payment, at 10 percent. Then it exempts the people most likely to inherit: a spouse, a recognised de facto partner, children and other descendants, and parents and other ascendants pay none of that 10 percent.
Two qualifications matter for property. A separate stamp duty of 0.8 percent applies to real estate passing on a death, charged on the property's taxable value, and it applies to everyone, exempt heirs included. And where an heir is not in the exempt group, a brother, a nephew, a partner who is not a recognised de facto partner, a friend, they pay both charges on a house: 10.8 percent in total. IMT, the purchase tax buyers know from completing, is not charged on an inheritance at all, with one exception: if the heirs divide the estate and one of them takes more property than their share, the excess is taxed like a purchase.
Notice what does not appear in this section: the choice of law. Choosing your national law in your will changes who must inherit. It does not move the tax. The stamp duty position above follows Portuguese rules whatever law governs the succession.
Making a Portuguese will: two forms, one register
Portuguese law has two ordinary forms of will. The testamento público is the standard route: you tell the notary what you want, the notary writes it into the official book of notes, and you sign it there, with two witnesses. The testamento cerrado is a closed will: you write and sign it yourself, a notary formally approves it, and its contents stay private until your death. Brazilian readers should note there is no equivalent here of the Brazilian private handwritten will: a homemade document will not do.
The official fee at a public notary office is €159 for a public will, or for approving a closed one, as published on the ePortugal service. Private notaries charge their table fees plus VAT, so ask before you book. Either way, the notary records the will in the central wills register, the Registo Central de Testamentos, kept by the IRN. While you are alive, only you, or someone you give special powers, can ask whether a will exists. After a death, anyone can obtain the certificate, which costs €25, and that is how a family establishes which will is the last one.
The standard professional advice, and it is advice rather than a legal requirement, is to make a separate Portuguese will that covers only your Portuguese assets, drafted alongside your will at home so that neither document accidentally revokes the other. It keeps the Portuguese side of your affairs in a Portuguese process your heirs can run locally, in the local language, without first proving a foreign will. Review it when life changes: a purchase or sale, a marriage or divorce, a new child or grandchild, a move to another country. Each of those can move both the reserved shares and the right answer on the law to choose.
When someone dies: the process your family will face
The first formal step is the habilitação de herdeiros, the document that identifies the heirs and their shares. It is done at a notary, or at the Balcão de Heranças, the inheritance desk run by the IRN, which can combine the identification of heirs, the division of the estate and the registration of the property in a single procedure. The simple identification is listed on the government portal at €150. One person, the cabeça-de-casal, usually the surviving spouse, administers the estate until it is divided and deals with the tax office. Every heir needs a Portuguese tax number, so foreign children should expect to obtain a NIF as part of the process.
There is exactly one hard deadline in the system, and families miss it because nobody told them. The stamp duty filing (Modelo 1) must be made by the end of the third month after the month of the death: for a death in January, the filing is due by the end of April. The division of the estate itself, the partilha, has no deadline at all. Heirs can demand it at any time, or agree to leave the estate undivided for up to five years at a time, which is what many families do with a house everyone still uses. Undivided is lawful. Unfiled is not.
Where the estate reaches into another European country, the European Certificate of Succession lets an heir prove their status there without further formalities. It is the document that turns a Portuguese inheritance file into one a bank or a land registry elsewhere in the EU will accept.
Three questions to settle while it is easy
Which law governs my estate if I die tomorrow?
If the honest answer is "Portugal, by default, and that is not what I want", the choice of your national law belongs in a will, made deliberately and stated expressly. Doing nothing is also a choice, and it chooses Portugal.
Does my will fit the reserved shares, or lawfully step outside them?
A will written at home can be perfectly valid and still be cut back in Portugal. Have your wills read together, against the reserved-share table, before you assume the document does what it says.
Could my family find the paperwork and run the process?
A Portuguese will on the central register, heirs who know a NIF will be needed, and one conversation about who will act as cabeça-de-casal removes most of the friction from a process that starts on the worst week of their lives.
Sources
- European e-Justice Portal, “Succession: Portugal” (reserved shares, will forms, marriage property): e-justice.europa.eu
- Regulation (EU) No 650/2012 on succession, articles 20 to 22, 27, 34, 36 and 62 to 69: eur-lex.europa.eu
- Código do Imposto do Selo, article 6(1)(e) and General Table items 1.1 and 1.2 (Tax Authority): portaldasfinancas.gov.pt
- Government of Portugal, “Fazer a habilitação de herdeiros” (process and fees): gov.pt
- Justiça/IRN, certificate of the existence of a will, Registo Central de Testamentos: justica.gov.pt
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