Flash TFRA | Law no. 48/2018, August 14 – Reciprocal Waiver of the Legal Heir Status in the Prenuptial Agreement.

The 1966 Civil Code dictated, on this matter, a legal regime that no longer suits the social realities underlying today’s marriage relationships. Ideologies notwithstanding, the law is required to adjust to the natural evolution of what societies have become. The significant increase in the number of divorces and the gains in the average life expectancy figures have resulted in a paradigm shift that has earned the attention of the Portuguese Parliament.

Therefore, and aiming at protecting the inheritance rights of any previous relationship offspring, Parliament has now made it possible to reciprocally waiver the status of legal heir to the other spouse’s estate, which is only admissible if the matrimonial property regime is one of separation. The waiver, however, may be conditional to the survival of any heir by only one of the relevant parties.

The waiver will only affect the inheritance status of the spouse, which means that any social benefits and alimony rights of the surviving spouse are safeguarded as applicable under the law.

If the family’s residential home is owned by the deceased spouse, the surviving spouse may remain in it as long as they do not own another, geographically close estate, for a maximum term of 5 years; this term can be extended by the court if the surviving spouse is proven to be exceptionally deprived of surviving means. Once the said term expires, the surviving spouse may become a lessee of the housing and remain in there until a lease agreement has been concluded.

The surviving spouse is also entitled to a pre-emption right on the housing as long as they dwell in it and if they, at the other spouse’s time of death, have already celebrated their 65th birthday, their housing rights are considered perpetual.

Note should be taken that the law is in force since September the 1st and is only applicable to marriages celebrated after that date.

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