International Succession Brazil–Portugal

An estate with assets in Brazil and in Portugal cannot be settled through a single procedure. Each country applies its own rules to decide which law governs the succession, which authority has jurisdiction and which taxes are due. In many cases, the answers coincide; in others, they do not — and it is in these divergences that delays, costs and disputes among heirs arise.

• Two possible laws: Brazilian law and Portuguese law treat the forced share, the position of the spouse and agreements on inheritance differently.
• Two procedures: assets located in Brazil go through inventory proceedings in Brazil; assets located in Portugal are dealt with before the Portuguese authorities.
• Two tax systems: ITCMD (Brazilian state tax on inheritances and gifts), levied by the states in Brazil, and Stamp Duty (Imposto do Selo) on gratuitous transfers, in Portugal.

Succession planning serves precisely to anticipate these issues, with decisions made by the owner of the assets, and not by the heirs under the pressure of deadlines.

In Portugal: the European Succession Regulation

For successions opened on or after August 17, 2015, Portugal applies Regulation (EU) 650/2012 (Art. 83). The general rule is the law of the State of the deceased's habitual residence at the time of death, applicable to the succession as a whole (Art. 21(1)), with an exception for cases where there is a manifestly closer connection with another State (Art. 21(2)). The Regulation applies even if the law designated is that of a third State, such as Brazil (Art. 20), and, in that case, there may be renvoi to the private international law rules of that State (Art. 34).

A person may also choose, in a will, the law of the State of which they are a national to govern their entire succession — the so-called professio iuris (Art. 22). Those with dual nationality may choose either one. The choice must be express or result from the terms of a disposition of property upon death, and it does not admit renvoi (Art. 34(2)).

In Brazil: the law of domicile and exclusive jurisdiction

Brazil is not a member of the European Union and does not apply the Regulation. Under Art. 10 of the Law of Introduction to the Norms of Brazilian Law (Decree-Law 4,657/1942), succession is governed by the law of the country in which the deceased was domiciled, whatever the nature and location of the assets. Paragraph 1 of the same article — reproduced in Art. 5(XXXI) of the Constitution — provides that the succession of foreigners' assets located in Brazil is governed by Brazilian law for the benefit of the Brazilian spouse or children, whenever the deceased's personal law is not more favorable to them.

In addition, Art. 23(II) of the Code of Civil Procedure reserves to the Brazilian courts, to the exclusion of any other, the inventory and partition of assets located in Brazil, even if the deceased was a foreigner or domiciled outside the country. For this reason, a foreign decision on those assets is not recognized in Brazil (Art. 964 of the CPC).

What this means in practice

• A Brazilian with habitual residence and domicile in Portugal: as a rule, both systems point to Portuguese law. Even so, the assets in Brazil will go through inventory proceedings in Brazil, and the Brazilian judge or notary will apply Portuguese law, subject to the rule protecting the Brazilian spouse and children when the deceased is a foreigner.
• A resident of Brazil with real estate or investments in Portugal: the Portuguese authorities tend to apply Brazilian law (the law of habitual residence), and the Portuguese asset is dealt with in Portugal.
• A Brazilian in Portugal who chooses Brazilian law in a will: the choice is valid under the Regulation, but the LINDB does not provide for a choice of law by the testator. There may therefore be one law applied in Portugal and another in Brazil. The decision on whether or not to make this choice must be taken with this divergence in view.

It should also be noted that the Regulation does not cover matrimonial property regimes, questions of company law, trusts, or assets transferred outside the succession, such as insurance and pension plans (Art. 1(2)). The spouse's half share of the marital property (meação), for example, is determined beforehand and under its own rules.

Estate inventory proceedings in Brazil

Assets located in Brazil are inventoried in Brazil. If all heirs have full legal capacity and are in agreement, the estate inventory and partition may be carried out by public deed before a notary, with the assistance of a lawyer (Art. 610, §§ 1 and 2, of the CPC). CNJ Resolution 35/2007 (Resolução), as amended by Resolution 571/2024, now also allows the out-of-court route:

• with a minor or legally incapacitated heir, provided that their share is paid as an undivided fraction of each asset and the Public Prosecutor's Office issues a favorable opinion (Art. 12-A);
• when there is a will, provided that the competent court has opened it and expressly authorized the out-of-court route in a final and unappealable judgment, and all interested parties have full legal capacity, are in agreement and are represented by a lawyer (Art. 12-B).

The same resolution prohibits a deed of inventory and partition covering assets located abroad (Art. 29). In August 2026, CNJ Resolution 695/2026 changed the rules on the payment of ITCMD: drawing up the deed no longer depends on proof of prior payment of the tax; instead, the notary records that the parties have been informed and notifies the tax authorities (Art. 15).

Declaration of heirs and partition of the estate in Portugal

In Portugal, the status of heir may be declared by a notarial declaration of heirs, which has the same effects as a judicial declaration and serves as title for land, commercial and vehicle registrations and for withdrawing funds from bank accounts (Arts. 82 to 86 of the Notarial Code). When the law governing the succession is not Portuguese law, the deed must be accompanied by a suitable document proving that law (Art. 85(2)). The Portuguese State also offers the Inheritance Desk (Balcão das Heranças), which handles the declaration of heirs, partition and registration in a single service.

If there is agreement, the partition may be made by deed. Without agreement, the inventory proceedings are used, which, since Law 117/2019 (Lei), may be filed with the courts or with notary's offices, at the choice of the interested party or by agreement among all of them, except in cases reserved to the courts (Art. 1083 of the Portuguese Code of Civil Procedure).

Documents and decisions that circulate between the two countries

• European Certificate of Succession: makes it possible to prove the status of heir or the powers of the estate administrator in another Member State of the European Union (Arts. 62 and 63 of the Regulation). It is useful when there are assets in other EU countries, but it has no effect of its own in Brazil.
• Portuguese decisions in Brazil: as a rule, they require recognition by the Superior Court of Justice (Art. 961 of the CPC), which is not granted with respect to assets located in Brazil (Art. 964).
• Brazilian decisions in Portugal: judgments on private rights must be reviewed and confirmed by the Portuguese courts to take effect (Arts. 978 and 980 of the Portuguese CPC).
• Certificates and deeds: Brazil and Portugal are parties to the Hague Apostille Convention, which simplifies the circulation of public documents between the two countries.

Both countries protect part of the estate in favor of certain family members, but in different ways. The law governing the succession determines which rule applies.

In Brazil

• The forced heirs are the descendants, the ascendants and the spouse (Art. 1,845 of the Civil Code).
• The forced share is always half of the estate (Art. 1,846); the testator may freely dispose of the other half (Art. 1,789).
• Whether the spouse inherits alongside the descendants depends on the matrimonial property regime (Art. 1,829, I).
• Clauses of inalienability, unattachability and non-communicability on the forced share are valid only with just cause stated in the will (Art. 1,848).
• Contracts concerning the estate of a living person are not allowed (Art. 426).

In Portugal

• The forced heirs (herdeiros legitimários) are the spouse, the descendants and the ascendants (Art. 2157 of the Portuguese Civil Code).
• The forced share varies according to the heirs: half of the estate for the spouse alone (Art. 2158); two-thirds for the spouse and children together; half for an only child and two-thirds for two or more children, with no spouse (Art. 2159); two-thirds for the spouse and ascendants; half or one-third for ascendants alone, depending on the degree (Art. 2161).
• The calculation includes the assets existing at the date of death, gifted assets and expenses subject to collation, less debts (Art. 2162). Gifts that encroach on the forced share are subject to abatement as excessive (inoficiosas) (Art. 2168).
• Since 2018, prospective spouses may, in the prenuptial agreement, mutually waive their status as forced heirs, provided that the regime is separation of property (Art. 1700(1)(c) and (3)).

Practical differences

• With a spouse and children, the disposable portion is half in Brazil and one-third in Portugal.
• In Portugal, the spouse is a forced heir regardless of the matrimonial property regime; in Brazil, the spouse's share alongside the descendants depends on the regime.
• The prenuptial waiver of inheritance rights in the spouse's estate, allowed in Portugal, has no equivalent in Brazilian law, which prohibits contracts concerning the estate of a living person.

Formal validity

The Hague Convention of October 5, 1961 on the form of testamentary dispositions does not apply between Brazil and Portugal: according to the official status table of the Hague Conference, Portugal signed it in 1967 but did not ratify it, and Brazil is not a party. In Portugal, therefore, Art. 27 of Regulation (EU) 650/2012 applies: a written will is formally valid if it complies with, among others, the law of the place where it was made, the law of the testator's nationality, domicile or habitual residence (at the time of the act or of death) or, for real estate, the law of the place where the property is located.

For Portuguese citizens (including dual nationals), Art. 2223 of the Portuguese Civil Code requires a will made abroad to have followed a solemn form in order to take effect in Portugal.

Wills in Brazil and Portugal

• In Brazil: the ordinary forms are the public, sealed and private will (Art. 1,862 of the Civil Code). Brazilians abroad may execute notarial acts before the Brazilian consulate (Art. 18 of the LINDB).
• In Portugal: the common forms are the public will, written by a notary, and the sealed will (Arts. 2204 and 2205 of the Portuguese Civil Code).
• Both countries prohibit joint wills — the so-called "mutual" will made in a single instrument (Art. 1,863 of the Brazilian Civil Code; Art. 2181 of the Portuguese Civil Code).

One will or two?

A single will may be enough, but with significant assets in both countries it is usually more practical to have a will in each country, drafted in a coordinated way. The main points of care are:

• precisely defining the assets covered by each will;
• drafting the revocation clauses so that the later will does not unintentionally revoke the one made in the other country;
• keeping any choice of law (Art. 22 of the Regulation) consistent between the two instruments;
• respecting the forced share under the law that will actually govern the succession;
• bearing in mind that, in Brazil, the existence of a will requires it to be opened and ordered to be fulfilled in court before any out-of-court inventory before a notary (CNJ Res. 35/2007, Art. 12-B).

Portugal: Stamp Duty

• Gratuitous transfers — on death or by gift — are subject to Stamp Duty at a rate of 10% (item 1.2 of the General Table of the Stamp Duty Code).
• The tax is levied on assets located in Portugal (Art. 4(3)), according to the criteria of Art. 4(4) — for example, real estate in Portugal, accounts with Portuguese banks and equity interests in Portuguese companies when the acquirer is domiciled in Portugal.
• Exemption: the spouse or de facto partner, descendants and ascendants are exempt under item 1.2 (Art. 6(1)(e)).
• Gift of real estate: the acquisition of real estate by gift is also subject to item 1.1, at a rate of 0.8%. The exemption in Art. 6(e) applies only to item 1.2, so the 0.8% applies even to gifts to children or to the spouse. In successions on death, item 1.1 does not apply.
• Not subject to item 1.2 are, among others, life insurance proceeds and amounts invested in pension funds and retirement savings plans (Art. 1(5)).
• Even when an exemption applies, the estate administrator must report the death and the assets to the tax office by the end of the 3rd month following the death (Art. 26).

Brazil: ITCMD

• ITCMD is a state tax and, since Constitutional Amendment 132/2023 (Emenda Constitucional), must be progressive according to the value of the hereditary share, the legacy or the gift (Art. 155, § 1, VI, of the Constitution), subject to the maximum rate set by the Federal Senate (Senate Resolution 9/1992).
• Complementary Law 227/2026 (Lei Complementar), in force since January 14, 2026, established the general rules for the tax: the tax base is market value (Art. 152), minimum criteria for valuing company quotas and shares (Art. 154) and progressive rates by brackets (Art. 156).
• When there is a foreign element, LC 227/2026 regulated the taxing jurisdiction that the Constitution had left to a complementary law:
  • real estate in Brazil: the State where the property is located, even if the deceased resided abroad (Art. 158, I);
  • real estate abroad: the State of the deceased's domicile, if domiciled in Brazil, or of the heir's domicile, if the deceased resided abroad (Art. 158, II);
  • movable assets, investments and equity interests: the State of the deceased's domicile, if domiciled in Brazil; if domiciled abroad, the State of the heir's domicile; if both reside abroad, the State where the assets are located (Art. 159).
• The actual rates and the method of collection depend on each State's law, which must be brought into line with LC 227/2026.

Risk of double taxation

The same asset may be subject to tax in both countries — for example, a property in Portugal left by someone who was domiciled in Brazil. For this reason, the tax analysis must be done asset by asset, taking into account the heirs' degree of kinship, each heir's domicile and the law of the competent Brazilian State.

No single tool suits every family. The choice depends on the composition of the assets, the heirs' domicile and the applicable forced heirship rules.

• Will: makes it possible to distribute the disposable portion, make legacies, appoint an executor and, in Portugal, choose the law of one's nationality.
• Lifetime gift with reserved usufruct: allowed in both countries (Art. 958 of the Portuguese Civil Code). In Brazil, a gift to descendants or to the spouse constitutes an advance on the forced share and is subject to collation, and it is void to the extent that it exceeds the disposable portion (Arts. 544, 549 and 2,002 of the Civil Code). In Portugal, there is also lifetime partition, with the consent of the other forced heirs (Art. 2029 of the Portuguese Civil Code). A gift is a taxable event for ITCMD and, in Portugal, for Stamp Duty, with the exemptions and the 0.8% item already mentioned.
• Family holding company: can organize the management and succession of equity interests and real estate, with governance rules in a shareholders' agreement. It is not, in itself, a tax-saving tool: LC 227/2026 requires quotas to be valued at least at net equity adjusted to market value (Art. 154, II). Company law matters fall outside the scope of the European Regulation (Art. 1(2)(h)).
• Life insurance and private pension plans (PGBL and VGBL): in Topic 1,214, the STF held that ITCMD is not levied on VGBL and PGBL amounts transferred to beneficiaries upon the holder's death, and LC 227/2026 provides that the tax does not apply to supplementary pension benefits and insurance (Art. 150, III). On the civil law side, the STJ has recognized the insurance nature of VGBL, but some decisions allow the amounts to be brought into the inventory when the plan functioned as an investment. In Portugal, life insurance and retirement plans are not subject to item 1.2 and fall outside the scope of the Regulation.
• In Portugal, specifically: a public will with a choice of law, gifts with reserved usufruct, lifetime partition and, for those about to marry, the mutual waiver of forced heir status in the prenuptial agreement, under the separation of property regime.

With offices in São Paulo and Albufeira, Sene & Araújo assists with estate planning and succession in both countries.

1. Mapping of assets in Brazil and Portugal: real estate, equity interests, investments, pension plans and insurance, together with the couple's matrimonial property regime and each heir's domicile.
2. Analysis of the applicable law and of the consequences of a possible choice of law, comparing the forced share in each scenario.
3. Coordinated wills in Brazil and Portugal, and review of existing wills.
4. Study of planning tools — gifts, usufruct, corporate structures, insurance — and of the taxes that apply in both countries.
5. Estate inventory proceedings in Brazil, in court or before a notary, including the opening and fulfillment of the will.
6. Declaration of heirs and partition in Portugal, by deed, through the Inheritance Desk or in inventory proceedings, and compliance with obligations before the Tax Authority.
7. STJ recognition or recognition of a foreign judgment in Portugal, when a decision needs to take effect in the other country.
8. Updating of registrations: land and commercial registry, bank accounts, vehicles and equity interests.