Waiving Inheritance Between Spouses: How Reciprocal Renunciation Works in Prenuptial Agreements

Portuguese succession law currently allows for the reciprocal renunciation of the status of "forced heir" (herdeiro legitimário) between spouses, granting greater autonomy in the organization of a couple's assets. This legal mechanism enables future spouses, prior to marriage, to waive this status through a prenuptial agreement (convenção antenupcial).

As a general rule in Portugal, a spouse is a forced heir, entitled to a portion of the estate that cannot be freely disregarded. However, the law permits this exception: future spouses may expressly and reciprocally waive this right, provided they do so before the marriage within a prenuptial agreement. This solution is typically associated with the "separation of property" regime.

By exercising this option, the surviving spouse loses the right to the statutory portion (legítima) and is not called to the succession in that capacity. Nevertheless, they may still benefit from a will within the available quota and maintain other legally provided rights, such as the potential right to alimony.

This issue is particularly relevant in situations involving children from only one of the spouses (descendants from previous relationships). In these contexts, the reciprocal waiver can play a decisive role in preserving the original family heritage.

Without such a waiver, the surviving spouse is called to the succession as a forced heir, acquiring rights over the estate. Subsequently, upon their own death, those assets could be transmitted to their own heirs—including descendants who are not part of the original spouse's family line. This results in an indirect transfer of assets out of the original family nucleus.

Through a reciprocal waiver stipulated in a prenuptial agreement, this effect can be avoided. It prevents the surviving spouse from acquiring the status of forced heir and, consequently, from passing that heritage to their own heirs. This solution ensures that assets remain within the family of the deceased spouse, promoting consistency and respecting the logic of family patrimonial continuity.

Spousal inheritance waivers have gained increasing importance, especially in the context of blended families, autonomous estates, or structured estate planning. In summary, this is a vital tool in Portugal, reconciling contractual freedom with the limits of family and succession law.

Before making any decisions regarding the patrimonial and succession organization of a couple, seeking legal advice is highly recommended. VPA – Sociedade de Advogados and its team are available to provide legal counsel on this matter, specifically in structuring estate planning solutions and analyzing the effects of reciprocal waivers in prenuptial agreements.