Unmarried partnerships and inheritance in Portugal and Spain: what rights does the surviving partner have?

Unmarried partnerships are now a well-established form of family organization. However, the social proximity between marriage and an unmarried partnership does not necessarily correspond to legal equivalence, particularly in matters of succession.

This distinction becomes especially important when one of the partners dies. Despite a long-standing, public and stable relationship, the surviving partner may discover that the surviving partner is neither a legal heir nor a forced heir. In cross-border situations involving Portugal and Spain, the answer becomes even more complex because Spanish law does not provide a uniform civil-law regime for parejas de hecho.

Determining the surviving partner’s rights therefore requires a preliminary analysis of three issues:

1. whether the relationship satisfies the statutory requirements of an unmarried partnership;
2. which law applies to the succession;
3. whether that law grants statutory succession rights to the unmarried partner or whether the partner’s protection depends on a will.

1. Unmarried partnerships in Portugal: a family relationship without a succession status equivalent to marriage

Under Portuguese Law No. 7/2001 of 11 May, an unmarried partnership is the legal situation of two persons who, irrespective of sex, have lived under conditions similar to those of spouses for more than two years.

The legal effects of the partnership do not depend on registration, execution of a public deed or any other constitutive act. The existence of the partnership may be established by any legally admissible means of evidence, without prejudice to circumstances in which the law requires specific documentation. Nevertheless, the recognition or exercise of certain rights may require a court decision, as discussed in previous articles.

The most commonly used evidence includes:

• a declaration issued by the local parish council;
• a shared tax residence;
• the existence of children of both partners;
• witness evidence.

Portuguese law grants unmarried partners a number of social, employment, tax and housing rights. However, Portuguese law does not include an unmarried partner among legal heirs or forced heirs. Unlike a surviving spouse, an unmarried partner does not automatically receive a share of the estate solely by reason of the relationship.

Accordingly, if the deceased did not make a will, the estate will pass to the persons entitled to inherit under the Portuguese Civil Code. The unmarried partner does not, in that capacity alone, fall within any class of heirs.

Testamentary succession as the principal means of protection in Portugal

Because an unmarried partner is not a legal heir, the partner may only receive assets from the estate under a will, without prejudice to the specific rights granted by law in relation to maintenance, housing, social benefits and compensation.

The testator may:

• appoint the unmarried partner as an heir;
• leave the partner a cash legacy or a specific asset;
• grant the partner a usufruct over immovable property;
• grant the partner a right of use or occupation;
• designate the partner as beneficiary of the freely disposable portion of the estate.

Testamentary freedom is, however, subject to an important limitation arising from the reserved share of forced heirs. Where the testator leaves descendants or ascendants, the testator may freely dispose only of the part of the estate that is not legally reserved for those heirs.

For example, where the deceased leaves children, the deceased will not generally be entitled to leave the entire estate to the unmarried partner. A testamentary disposition exceeding the freely disposable portion may be reduced as an excessive disposition at the request of the forced heirs.

Appropriate succession planning should therefore not be limited to drafting a will. Succession planning should also consider:

• the anticipated composition of the estate;
• the existence of forced heirs;
• whether assets are separate or jointly owned;
• lifetime gifts;
• protection of the family home;
• assets or residences located in different countries;
• the law that will apply to the succession.

The unmarried partner’s right to claim maintenance from the estate

The fact that an unmarried partner is not a legal heir does not mean that the surviving partner is entirely unprotected. Under Article 2020(1) of the Portuguese Civil Code, a surviving partner who, at the time of death, had lived with the deceased for more than two years under conditions similar to those of spouses may claim maintenance from the estate.

This is a right of a maintenance or welfare nature, rather than an inheritance right. The beneficiary does not acquire the status of heir or a share in the estate through the exercise of this right.

Maintenance is not intended to ensure that the surviving partner continues to enjoy the same standard of living as during the relationship. Article 2003 of the Portuguese Civil Code limits maintenance to what is necessary for subsistence, housing and clothing, as well as education where applicable.

Need is not presumed and must therefore be pleaded and proved.

Against whom should the claim be brought?

The claim must be brought against the deceased’s estate, represented in accordance with the applicable procedural rules, rather than directly against the heirs as though the heirs were the original personal debtors.

Time limit for exercising the right

The right to claim maintenance from the estate lapses if it is not exercised within two years following the date of death of the deceased, as provided by Article 2020 of the Portuguese Civil Code.

The surviving partner should therefore not wait until the estate has been distributed or until relations with the heirs have deteriorated. The surviving partner’s maintenance needs and the financial position of the estate should be assessed promptly after the death.

Protection of the family home

The absence of succession rights does not exclude the housing protection provided by Portuguese Law No. 7/2001.

Where the family home belonged to the deceased, the surviving unmarried partner may benefit from a right in rem to occupy the property and a right to use its household contents for a period of five years. If the partnership lasted for more than five years, that right may continue for a period equal to the duration of the partnership, subject to the applicable statutory rules and exceptions.

In certain circumstances, the court may extend that period, taking into account, in particular:

• the duration of the partnership;
• the surviving partner’s particular needs;
• the surviving partner’s age;
• the surviving partner’s financial circumstances;
• the availability of alternative accommodation;
• the heirs’ interests.

After the statutory occupation period has ended, the surviving partner may, under certain conditions, remain in the property as a tenant and may benefit from a right of first refusal if the property is sold.

These rights should not be confused with ownership of the property or the status of heir.

Does the breakdown of the unmarried partnership cause a will to lapse?

This is one of the most sensitive issues in succession practice.

Consider a situation in which, during the relationship, one partner appoints the other partner as an heir or legatee. The relationship subsequently ends, but the testator does not revoke or amend the will. Several years later, the testator dies.

Does the testamentary disposition automatically lapse merely because the unmarried partnership no longer exists?

Under Portuguese law, the answer is that there is no automatic lapse.

Article 2317(1)(d) of the Portuguese Civil Code provides for the lapse of testamentary dispositions made in favour of a spouse when, at the time the succession opens, the marriage has already been dissolved by divorce, a judicial separation of persons and property has been ordered, or the marriage has been declared null or annulled, in the circumstances set out in that provision.

The provision expressly refers to spouses and not to unmarried partners.

The termination of an unmarried partnership therefore does not, in itself, cause a previous appointment of the former partner as an heir or legatee to lapse.

Accordingly, if the testator does not revoke or amend the will, the disposition will, in principle, remain effective even if:

• the partners ceased to live together;
• the personal relationship ended;
• the former partners live separately;
• the testator entered into a new relationship;
• assets previously held jointly have been divided.

The absence of revocation is particularly important because a will is, by its nature, revocable. For as long as the testator retains testamentary capacity, the testator may revoke, replace or amend any previous testamentary dispositions. If the testator does not do so, the legal system will generally seek to uphold the last formally expressed intention.

Can the heirs challenge the testamentary disposition?

Legal heirs, forced heirs or other directly prejudiced interested parties may bring court proceedings challenging the validity or effectiveness of a testamentary disposition. However, the availability of such proceedings does not mean that termination of the unmarried partnership is, in itself, sufficient grounds for obtaining a declaration that the will has lapsed or is invalid.

It is therefore not legally safe to assert, as a general rule, that the breakdown of the unmarried partnership results in the “failure of the underlying cause” or the “failure of the contractual basis” of the will. Such an argument may be raised before the courts, but its success will depend on additional evidence establishing that the disposition was expressly conditional upon continuation of the relationship or that the testamentary intention was affected by another legally relevant circumstance.

Where the reserved share of a spouse, descendant or ascendant is affected, the legal consequence may not be the invalidity of the will. Instead, excessive testamentary dispositions may be reduced to the extent necessary to restore the reserved share, under Articles 2156 et seq. and 2168 et seq. of the Portuguese Civil Code.

Which declarations contained in a will remain effective even if the will is subsequently revoked?

A will is, by definition, a unilateral and freely revocable act. For as long as the testator retains testamentary capacity, the testator may revoke all or part of an earlier will by changing the appointment of heirs, legacies or other succession-related burdens.

However, not every declaration included in a will is genuinely testamentary in nature. A will may contain acts relating to other areas of law whose validity and effectiveness do not depend on the continued existence of the testamentary dispositions.

The most important example is acknowledgment of parentage.

An acknowledgment of parentage made in a will is irrevocable.

Consequently, even if the testator:

• revokes the will in full;
• makes a new will that is inconsistent with the previous will;
• destroys or instructs another person to destroy the testamentary document;
• removes all property dispositions contained in the will;

the earlier acknowledgment of parentage remains valid and effective.

2. Spain: there is no single succession regime for parejas de hecho

Spain does not have a uniform nationwide civil-law regime for unmarried partnerships. The recognition and effects of parejas de hecho depend, to a significant extent, on the legislation of the relevant autonomous community.

Differences may concern:

• the minimum duration of cohabitation;
• whether the partners have children together;
• registration in an administrative register;
• execution of a public deed;
• whether registration is constitutive or merely declaratory;
• property rights following the breakdown of the relationship;
• succession rights;
• housing protection;
• whether the surviving partner is treated in the same way as a surviving spouse.

It is therefore not legally accurate to state, in general terms, either that “an unmarried partner inherits in Spain” or that “an unmarried partner does not inherit in Spain”. The answer depends on the territorial civil law applicable to the succession.

The Catalan regime

In Catalonia, a surviving partner in a stable partnership benefits from succession protection similar to that granted to a spouse.

In an intestate succession, where the surviving partner inherits alongside the deceased’s children or other descendants, the surviving partner is generally entitled to a universal usufruct over the estate without being required to provide security. The surviving partner may also exercise the statutory option to commute that usufruct.

If the deceased leaves no children or other descendants, the estate passes to the surviving spouse or the surviving partner in a stable partnership, without prejudice to the parents’ reserved-share rights. Catalan law therefore grants stable partners succession rights equivalent to those arising from marriage.

Catalan legislation also contains a specific rule governing testamentary dispositions made in favour of a spouse or partner where, after the will was made, a marital crisis occurs or the partners cease to live together. This differs from the Portuguese approach, under which the ground of lapse applicable to former spouses is not automatically extended to former unmarried partners.

Even under a protective system such as the Catalan regime, it will be necessary to prove that the relationship satisfied the statutory requirements and, where required for recognition of the survivor’s rights, that the relationship continued until the date of death.

The Galician regime

In Galicia, Law 2/2006 of 14 June on Galician Civil Law treats certain stable marital relationships as equivalent to marriage for the purposes provided for by that legislation.

For this equivalence to apply, the law requires, in particular:

• legal age and capacity;
• cohabitation with an intention or expectation of permanence;
• a personal relationship similar to marriage;
• registration in the Galician Register of Unmarried Partners;
• an expression of the partners’ intention that the effects of their partnership be treated as equivalent to those of marriage.

Once those requirements have been met, the rights granted to spouses under Galician civil law may, in principle, be extended to the members of a pareja de hecho. This may place the surviving partner in a succession position equivalent to that of a surviving spouse, including reserved rights of usufruct.

Registration is particularly important in this context. An informal and unregistered relationship may not be sufficient to produce the same succession effects.

In addition to registration in the Register of Unmarried Partners maintained by the Xunta de Galicia, the relevant intention must also be expressed, in particular through an agreement providing that the post-death property consequences of the partnership are to be treated as equivalent to those of a marriage. If no succession-related intention has been registered, a notary may decline to issue the corresponding declaration of heirs because there is no express declaration of intention by the deceased.

Spanish territories without equivalent succession rights

In other autonomous communities and territories, including Madrid, Andalusia, the Principality of Asturias, the Canary Islands, Cantabria, Extremadura, Castilla-La Mancha, Castilla y León, La Rioja, Murcia, the Valencian Community and the autonomous cities of Ceuta and Melilla, legislation governing parejas de hecho does not grant the surviving partner succession rights equivalent to those of a spouse.

In such cases, succession protection will generally depend on a will, subject to the reserved-share rights of descendants, ascendants or other persons specially protected under the applicable law.

The absence of intestate succession rights does not necessarily mean that the surviving partner has no protection whatsoever. The surviving partner may have:

• rights relating to the shared home;
• rights to take over a residential tenancy;
• death benefits;
• a survivor’s pension;
• property-related compensation;
• rights arising under agreements entered into between the partners.

These rights should not be confused with the status of heir.

3. Successions involving Portugal and Spain: which law applies?

For successions opening on or after 17 August 2015, Regulation (EU) No. 650/2012 provides, as a general rule, that the applicable law is the law of the State in which the deceased had habitual residence at the time of death.

However, the deceased may choose the law of the State of the deceased’s nationality to govern the succession as a whole by means of a disposition of property upon death.

The law applicable to the succession determines, among other matters:

• the beneficiaries of the succession;
• the order of succession;
• the beneficiaries’ respective shares;
• the rights of the surviving spouse or partner;
• reserved shares;
• the reduction of excessive testamentary dispositions;
• liability for the estate’s debts;
• distribution of the estate.

The analysis is more complex in Spain because Spain is a State with several territorial systems of civil law. Article 36 of the Regulation refers, in the first instance, to Spain’s internal rules governing territorial conflicts of laws. Only after the relevant territorial unit has been identified will it be possible to determine whether, for example, Catalan law, Galician law or the Spanish Civil Code applies.

Accordingly, the deceased’s Portuguese nationality does not necessarily mean that the succession will be governed by Portuguese law. A Portuguese citizen habitually resident in Catalonia may have the succession governed by Catalan law if the deceased did not make a valid choice of Portuguese law and the remaining connecting requirements are satisfied.

4. A reliable method of analysis

When a person who lived in an unmarried partnership and had connections with Portugal and Spain dies, the following steps should, at a minimum, be taken:

1. identify the deceased’s habitual residence at the time of death;
2. establish the deceased’s nationality or nationalities;
3. examine the will and determine whether the will contains a choice of law under Article 22 of Regulation (EU) No. 650/2012;
4. determine the law applicable to the succession as a whole;
5. if Spanish law applies, identify the relevant territorial unit and the applicable civil legislation;
6. prove the existence, duration and continuation of the unmarried partnership;
7. determine whether registration was a constitutive requirement;
8. establish whether there are forced heirs;
9. analyse housing rights, maintenance and social benefits separately from inheritance rights;
10. verify the effectiveness of the testamentary dispositions and whether any grounds exist for lapse, revocation, invalidity or reduction.

Conclusion

The succession protection afforded to unmarried partners differs substantially between Portugal and the various Spanish territories.

In Portugal, an unmarried partner is neither a legal heir nor a forced heir. The surviving partner may benefit from a testamentary disposition, claim maintenance from the estate if the relevant requirements are established and exercise specific rights relating to the family home. However, termination of the unmarried partnership does not automatically cause a will previously made in the partner’s favour to lapse.

In Spain, the answer depends on the autonomous community and the applicable territorial civil law. In Catalonia and Galicia, where the statutory conditions are satisfied, the surviving partner may benefit from a succession position similar or equivalent to that of a spouse. In other territories, protection may depend entirely on a testamentary disposition.

For unmarried couples, particularly where different nationalities, residences or assets located in different countries are involved, succession planning should be undertaken in advance and reviewed whenever a significant change occurs in the partners’ family circumstances. The absence of marriage does not mean that the relationship has no legal consequences, but neither does it guarantee succession protection.

Belzuz Abogados, S.L.P. – Portuguese Branch advises Portuguese and foreign clients on succession planning, estate distribution, inventory proceedings, asset regularisation and the resolution of succession disputes, providing an integrated and preventive approach tailored to the circumstances of each case.