Legal alert no. 65
Amendment to the Portuguese Civil Code, recognizing the possibility of reciprocal waiver to the condition of legitimate heir in the pre-nuptial agreement
On the past August 14th, it was published, in the Portugal Official Gazette, Law no. 48/2018, which amends the Portuguese Civil Code, recognizing the possibility of reciprocal waiver to the condition of legitimate heir in the prenuptial agreement.
In this regard, article 1700 of the Portuguese Civil Code is amended, being now provided that the pre-nuptial agreement shall contain a reciprocal waiver to the condition of legitimate heir of the other consort. However, it is equally amended the 3 paragraph of this article which establishes that this waiver shall only be accepted if the property scheme, stipulated or dictated by law, is the separation.
On the other hand, it is also amended article 2168 of the Portuguese Civil Code, being now foreseen that the donations in favor of the surviving consort that has waived to the legacy, up to the amount corresponding to the assets that the deceased shall not dispose, if the waiver did not exist, shall not be considered officious.
Lastly it is also added article 1707-A to the Portuguese Civil Code which establishes the regime of the waiver to the condition of heir. According to this regime, the waiver may be subject to the surviving or not of heirs of any class, not being required that the condition is reciprocal. Is shall be noted that this waiver only affects the position of the consort in what regards to the legacy, not being other legal rights affected and, in case the family residence is owned by the diseased , the surviving consort may live in it for a five year period. After this period and with any extend of the deadline, the surviving consort has the right to live in the property, as a tenant, until the signature of the relevant agreement, except if the property owners revoke the lease agreement. Additionally, the surviving consort has a preemption right while we lives in the property, should it be sold.
This Law enters into force on September 1st of 2018.
Access here the full version of Law no. 48/2018, dated from August 14th