Married under the regime of separation of property. When one spouse dies, is the other their heir?

This is a question that often crosses our clients' minds and raises many doubts.

The answer is unequivocal: yes, the surviving spouse is the heir.

The property regime is the set of rules that governs the property relations between spouses. This set of rules specifies which assets are jointly owned by the couple and which belong to only one of the spouses, how they will be divided in the event of divorce, and who is responsible for their administration.

The property regime is chosen by the couple before they marry, through a prenuptial agreement, or the legal regime provided for in Portuguese law is automatically applied.

The property regime essentially defines:

· which assets belong to each spouse;

· whether or not there is joint property;

· how the couple's assets are managed;

· how the assets are divided in the event of divorce.

It is, therefore, an exclusively matrimonial regime, with effects during the marriage and practical relevance especially in the context of separation or divorce.

Portuguese law provides for three main regimes:

• Community of Acquired Property (supplementary regime)

Assets acquired after marriage are common; pre-existing assets or those received by inheritance/donation remain separate.

• General Community Property

Almost all assets, both before and after marriage, are common, except for strictly personal assets. This regime is not permitted in certain situations, such as when there are children from previous relationships or if one is over 60 years of age.

• Separation of Property

Each spouse retains ownership and administration of their own property, and there is no common property unless both spouses acquire something jointly.

In the event of the death of one of the spouses, the property regime ceases to apply and Portuguese inheritance law applies.

The surviving spouse is always a legitimate heir, regardless of the property regime chosen. However, they may not be the heir to the entire estate of the deceased spouse, an issue that we will clarify in another article.

In other words:

· the property regime only regulates the property relationship during the marriage;

· upon death, the inheritance is distributed according to the rules of the Civil Code, and not according to the property regime.

The choice of property regime must be made with a clear understanding of its legal and property consequences, especially for international couples or those with assets in multiple jurisdictions.

Our team provides comprehensive advice on defining, changing or interpreting the property regime, as well as on associated asset and succession planning. If you need legal support in this area, contact us: tgl@lfadv.pt

We are here to help you.