How Much Can I Leave by Will in Brazil and Portugal

“How much of my estate can I leave to whomever I want?” This is one of the most frequent questions from people who live between Brazil and Portugal and are starting to think about a will. The answer depends on three factors: who your heirs are (spouse, children, parents), which law will govern your succession and what you have already given away during your lifetime. Brazil and Portugal protect the family in different ways, and the difference can reach one-sixth of the entire estate.

This article explains each country's rules, provides simulations for the most common family compositions and shows how the choice of law provided for in the European Succession Regulation can change the outcome.

Forced heirship share and disposable portion: the two concepts

In both countries, a person who has certain close relatives cannot freely dispose of all of his or her assets. A portion is reserved for these heirs, the forced heirship share (legítima); the rest is the disposable portion (quota disponível), which can go to anyone, by will or gift.

• In Brazil, the forced heirs (herdeiros necessários) are the descendants, the ascendants and the spouse (Art. 1,845 of the Civil Code). By operation of law, they are entitled to half of the assets of the estate (Art. 1,846), and the testator may dispose only of the other half (Art. 1,789).
• In Portugal, the forced share is the portion of assets the testator cannot dispose of because it is legally reserved for the forced heirs (herdeiros legitimários) (Art. 2156 of the Portuguese Civil Code): the spouse, the descendants and the ascendants, in the order and according to the rules of intestate succession (Art. 2157). The size of the forced share varies depending on who survives (Arts. 2158 to 2161).

A preliminary point that often causes confusion: the spouse's half-share of the marital property (meação) is not part of the estate. Depending on the matrimonial property regime, half of the common property already belongs to the surviving spouse and is left out of the calculation. The simulations below always start from the value of the estate, that is, the deceased's assets after the half-share has been set aside and debts have been deducted.

The Brazilian rule: half, whatever the family

In Brazil, the disposable portion is always half when there is at least one forced heir, whether a child, a parent or the spouse. What changes with the family composition is how the forced share is divided among them:

• The spouse inherits concurrently with the descendants, unless married under the universal community regime or mandatory separation of property, or if, under partial community, the deceased left no separate property (Art. 1,829, I). When inheriting concurrently, the spouse receives a share equal to that of the children, and no less than one-quarter of the estate if the spouse is an ascendant of the heirs with whom he or she inherits (Art. 1,832).
• Alongside the deceased's parents, the spouse receives one-third of the estate; if there is only one ascendant, or if the ascendants are of a more remote degree, the spouse receives half (Art. 1,837).
• The spouse has succession rights only if, at the time of death, the couple was neither judicially separated nor separated in fact for more than two years, subject to the exception provided by law (Art. 1,830).

Siblings, nephews and nieces and other collateral relatives are not forced heirs: to exclude them, the testator simply needs to dispose of the estate without including them (Art. 1,850). Clauses of inalienability, unseizability and non-communicability over the forced share are valid only if a just cause is stated in the will (Art. 1,848).

The Portuguese rule: it depends on who survives

In Portugal, the forced share changes according to the family composition:

• Spouse alone: half of the estate (Art. 2158).
• Spouse and children: two-thirds (Art. 2159(1)).
• Children, no spouse: half if there is only one child; two-thirds if there are two or more (Art. 2159(2)). Grandchildren are entitled to the forced share that would have gone to their parent (Art. 2160).
• Spouse and ascendants: two-thirds (Art. 2161(1)).
• Ascendants, with no spouse or descendants: half, if the parents are called to the succession; one-third, if they are grandparents or more remote ascendants (Art. 2161(2)).

Three practical differences stand out. A spouse who is divorced or judicially separated of persons and property is not called to the succession (Art. 2133(3)). A de facto partner (unido de facto) is not a forced heir, but if the deceased owned the family home (casa de morada de família), the survivor may remain there as holder of a real right of habitation, as a rule for five years (Art. 5 of Law 7/2001). And the testator may not impose charges on the forced share or designate, against the heir's will, the assets that are to make it up (Art. 2163); the testator may, however, leave a legacy in lieu of the forced share, which the heir may accept or refuse (Art. 2165).

Simulations by family composition

In the examples below, the estate is worth R$1,200,000, with the half-share already set aside and debts deducted. The same percentages apply to any amount or currency.

Spouse and two children

• Brazilian law: disposable portion of R$600,000. The forced share of R$600,000 is divided according to the property regime: under universal community, for example, the spouse does not inherit concurrently with the children (Art. 1,829, I) and the entire forced share goes to them, while the spouse keeps his or her half-share.
• Portuguese law: disposable portion of R$400,000 (one-third). The forced share of R$800,000 is divided per capita, according to the rules of intestate succession (Art. 2139): about R$266,667 for the spouse and for each child. With four children, a per capita division would give the spouse less than one-quarter, and so the spouse's share rises to that minimum.

Children only, no spouse

• Brazilian law: disposable portion of R$600,000, with one child or with several.
• Portuguese law: with one child, disposable portion of R$600,000 (half); with two or more, R$400,000 (one-third).

Spouse only, no descendants or ascendants

• Brazilian law: disposable portion of R$600,000. Without a will, the spouse receives the entire estate (Art. 1,838).
• Portuguese law: disposable portion also of R$600,000 (Art. 2158).

Spouse and the deceased's parents

• Brazilian law: disposable portion of R$600,000; within the forced share, the spouse inherits concurrently with the parents (Art. 1,837).
• Portuguese law: disposable portion of R$400,000 (one-third). In intestate succession, the spouse receives two-thirds and the ascendants one-third (Art. 2142).

Ascendants only

• Brazilian law: disposable portion of R$600,000.
• Portuguese law: with living parents, R$600,000 (half); if only grandparents remain, R$800,000 (two-thirds).

No forced heirs (herdeiros necessários or legitimários)

A person who leaves only siblings, nephews and nieces, or no close relatives can dispose of the entire estate in both countries: in Brazil, collateral relatives are not forced heirs (Art. 1,850); in Portugal, they are not forced heirs either (Art. 2157).

In short: Portuguese law is more restrictive when there is a spouse and children, two or more children, or a spouse and ascendants; it is the same as Brazilian law with only one child, only a spouse or only the parents; and it is more flexible when only grandparents remain.

Lifetime gifts are included in the calculation

The disposable portion is not calculated only on what exists at the date of death. In both countries, gifts made during the donor's lifetime are added in to calculate the forced share.

• In Brazil, the forced share is calculated on the assets existing when the succession opens, after deducting debts and funeral expenses, plus the value of the assets subject to collation (bringing gifts into hotchpot) (colação) (Art. 1,847). A gift from parents to children, or from one spouse to the other, constitutes an advance on the forced share (Art. 544), and a gift is void to the extent it exceeds what the donor could have disposed of by will at the time of the gift (Art. 549). The donor may waive collation, provided the gift comes out of the disposable portion without exceeding it (Arts. 2,005 and 2,006).
• In Portugal, the calculation takes into account the assets existing at the date of death, the assets given away, the expenses subject to collation and the debts (Art. 2162). Gifts that encroach on the forced share are inofficious (inoficiosas) (Art. 2168). Collation is binding on descendants (Art. 2104) and may be waived by the donor (Art. 2113); in that case, the gift is charged to the disposable portion (Art. 2114).

Under the European Regulation, collation and the reduction of gifts are governed by the law that governs the succession (Art. 23(2)(i)). A gift made in Brazil and planned under the Brazilian rule may be recalculated under Portuguese law.

Which law will apply: habitual residence and choice of law

For Portugal, Regulation (EU) No 650/2012 applies, as a rule, the law of the State of the deceased's habitual residence at the time of death (Art. 21). But Art. 22 allows a person to choose, for the entire succession, the law of the State of which he or she is a national, at the time of the choice or at the time of death; a person with dual nationality may choose either. The choice must be made expressly in a disposition of property upon death, such as a will, or be demonstrated by its terms, and the chosen law then governs the disposable portion and the forced share (Art. 23(2)(h)).

In Brazil, however, succession is governed by the law of the deceased's domicile (Art. 10 of the LINDB, Brazil's Law of Introduction to the Norms of Brazilian Law), and the LINDB does not provide for a choice of law by the testator.

Example: a Brazilian woman living in Albufeira, married with two children, wants to leave more to one of them. Without a choice of law, both countries tend to apply Portuguese law, and the disposable portion is one-third. If she chooses Brazilian law in her will, Portugal will apply the half rule to the assets it deals with. In Brazil, however, the judge or notary tends to apply the law of the domicile, Portuguese law, to the assets located in Brazil. The same will may thus be carried out in full in Portugal and reduced in Brazil.

This divergence does not prevent the choice, but it must be assessed with the full picture: where the assets are, where the heirs live and where each estate inventory proceeding (inventário) is likely to take place. In many cases, two coordinated wills, one in each country, reduce the risk. Our pages on wills in Brazil and Portugal and on international succession cover the form and coordination of these instruments.

If you are considering a will or gifts and would like to see your family's numbers under both scenarios, Sene & Araújo can prepare that comparison. Talk to our team.

Step by step to decide how much to leave

1. List the heirs who would exist today: spouse, children, grandchildren of predeceased children, parents or grandparents.
2. Set aside the half-share according to the property regime of the marriage, which may have been celebrated in Brazil, in Portugal or in another country.
3. Identify the likely applicable law in each country: habitual residence for Portugal, domicile for Brazil, and any choice of law.
4. Add up the gifts already made to children, the spouse or third parties, with their respective dates and amounts.
5. Calculate the disposable portion under both scenarios, Brazilian and Portuguese, and check whether the intended will fits within both.
6. Choose the instruments: one or two wills, whether or not to choose the applicable law, legacies, gifts with reserved usufruct.
7. Review when life changes: moving to another country, marriage, divorce, birth of children or grandchildren, purchase or sale of significant assets.

Common mistakes

• Drafting the will relying on the Brazilian disposable half when the succession will be governed by Portuguese law;
• Forgetting that lifetime gifts are included in the calculation of the forced share and may be reduced;
• Choosing Brazilian law in the will without assessing how Brazil will treat that choice;
• Confusing the half-share with the inheritance and underestimating what the spouse is entitled to;
• Assuming that a stable-union partner (companheiro) or a de facto partner has the same rights as a spouse in both countries;
• Making a will in each country with generic revocation clauses that end up unintentionally revoking the other.

When it makes sense to consult a lawyer

The calculation seems simple when looking at a single country. It becomes complex when there are significant assets on both sides, children from different relationships, a stable union (união estável) or de facto union (união de facto), prior gifts, a family business or a wish to benefit one heir unequally. In these situations, a joint analysis prevents the will from being reduced later and the family from facing disputes that could have been avoided.

Sene & Araújo, with lawyers in São Paulo and Albufeira, prepares the comparison of the rules in both countries and drafts coordinated wills as part of estate planning. Get in touch to discuss your case.

• Law 10,406/2002 — Civil Code (Arts. 544, 549, 1,789, 1,829, 1,830, 1,832, 1,837, 1,838, 1,845 to 1,848, 1,850, 1,961 to 1,964, 2,005 and 2,006)
• Portuguese Civil Code — Decree-Law 47344/66 (Arts. 2104, 2113, 2114, 2133, 2139, 2142, 2156 to 2163, 2165, 2166 and 2168)
• Law 7/2001 — De facto unions (Art. 5)
• Regulation (EU) No 650/2012 (Arts. 21, 22 and 23)
• Decree-Law 4,657/1942 (Decreto-Lei) — LINDB, Brazil's Law of Introduction to the Rules of Brazilian Law (Art. 10)
• STF (Brazilian Federal Supreme Court) — General Repercussion Theme 809 (RE 878,694)

Sene & Araújo Sociedade de Advogados team. Content prepared and reviewed by the firm's lawyers, admitted to the Brazilian Bar Association (OAB) and the Portuguese Bar Association (Ordem dos Advogados), with offices in São Paulo and Albufeira. The provisions cited were checked against the official sources listed above. Meet the team.