Renunciation is a unilateral, irrevocable, and formal act (public deed), whereby the person called to the inheritance declares that they do not intend to succeed the deceased. It is not a waiver of rights already acquired, but a refusal to acquire the status of heir.
- Legal Justifications for Renouncing an Inheritance
1.1. Existence of liabilities (debts) exceeding the estate’s assets
When the estate contains significant debts or tax obligations exceeding the value of the assets, the heir may choose to renounce to avoid assuming these burdens. Although it is possible to accept the inheritance with the benefit of inventory, renunciation remains an effective solution when the heir wishes to fully withdraw from the succession. Acceptance with the benefit of inventory limits liability for debts to the value of the inherited assets, protecting personal assets, while pure and simple acceptance (tacit/presumed acceptance) makes the heir liable with all assets (personal and inherited) for the debts. Acceptance “with benefit of inventory” requires a formal declaration at the beginning of the judicial process.
1.2. Family conflicts or emotional estrangement
Some heirs may prefer to renounce the inheritance to avoid family disputes, particularly in complex division processes or in cases of significant familial or emotional detachment from the deceased.
1.3. Estate and tax planning
Renunciation can be used as an instrument for estate reorganization, allowing the inheritance to pass directly to the next generation of successors (for example, grandchildren) for reasons of fiscal efficiency or family distribution harmonization.
1.4. Protection of personal assets
Heirs in vulnerable financial situations may renounce the inheritance to prevent inherited assets from being affected by personal creditors, even though the law provides protection mechanisms, such as estate separation (e.g., action for separation of marital property).
It is important to note that the repudiator’s creditors may always accept the inheritance on their behalf, under the provisions of Article 606 of the Portuguese Civil Code, which provides for the subrogation of the creditor in place of the debtor. Acceptance must occur within six months from the knowledge of the renunciation. Once the repudiator’s creditors are paid, the remaining estate does not benefit the renouncing heir but the immediate heirs.
- No Partial Renunciation
Portuguese law does not allow partial renunciation of inheritance. The heir must accept or renounce the inheritance in its entirety and cannot select only certain assets or rights from the estate.
- Effects of Renunciation and Right of Representation
Renunciation has retroactive effect, as if the heir had never been called to the succession. The place of the renouncing heir is filled according to the rules of the Portuguese Civil Code, allowing the right of representation to operate.
The right of representation allows the descendants of an heir who cannot or does not wish to succeed (including by renunciation) to assume their place in the succession.
This means that if a child renounces the inheritance from their parents, their descendants (grandchildren of the deceased) are called to succeed in the proportion that would correspond to the renouncing heir, unless they also renounce.
However, this representation has limits: it only operates in the direct descending line and in the collateral line up to the children of siblings.
If the descendants are minors, renunciation and acceptance of the inheritance require judicial authorization.
- Renunciation of Inheritance and Spousal Consent
Renunciation of the inheritance does not affect only the heir’s individual sphere and may impact the marital estate. For this reason, Article 1683 of the Portuguese Civil Code establishes that when the heir is married under a community property regime (general or acquired), renunciation of the inheritance depends on the spouse’s consent. The law only waives this consent under the separation of property regime. This consent may be provided in the same deed or in a separate document.
Lack of spousal consent renders the renunciation voidable.
- Possibility of Executing the Deed of Renunciation Abroad
It is possible to renounce a Portuguese inheritance abroad by means of a public deed executed at a Portuguese Consulate or before a local notary, provided the formalities required by Portuguese law are fulfilled: written document, notarial intervention, and express indication regarding the existence of descendants for assessment of the right of representation. A deed executed before a foreign notary must also be legalized (by Hague Apostille, where applicable) and properly translated.
- Conclusion
Renunciation of inheritance is highly relevant in the Portuguese legal system, serving as a mechanism that allows the heir to safeguard their patrimonial interests. Situations in which it is justified are varied, notably protection against excessive liabilities, management of family conflicts, and estate planning.
The coordination with the right of representation ensures that renunciation does not disrupt the continuity of succession within the family line, while rules on spousal consent protect the balance and integrity of the marital estate.
In short, renunciation is a useful and legally structured instrument, whose use should be considered on a case-by-case basis, considering the interests of the heir, the family, and the succession itself.
Given the complexity of these issues and the potential legal implications, it is essential to seek the support of experienced professionals in Family Law, such as Belzuz Abogados S.L.P. – Portugal Branch.