Published online by Cambridge University Press: 09 November 2019
In August 2018, a new act amended the Portuguese Civil Code making available to the about-to-be spouses a new option that allows them to reciprocally wave the mortis causa effects that were until then obligatorily connected to marriage. These effects were legally derived from the dissolution of marriage by death of one spouse. Law 48/2018, dated 14 August 2018, recognised the possibility of opting out of the spousal status of forced heir that had been imposed by law. In specific circumstances, before the solemnisation of their marriage, the future spouses may enter into a prenuptial agreement to that effect.
This innovative solution may be envisaged as an expression of the trend in recent evolution of family law and succession law towards the promotion of private autonomy in shaping the legal effects produced in these two spheres. This amendment embodies significant departures from some structural principles of Portuguese family and succession law, namely the compulsory nature of the succession between spouses on the one hand, and the prohibition of succession contracts, on the other.
In order to assess the impact of such an alteration and to understand the reasons behind it, it is important, firstly, to briefly depict the legal framework that previously applied, and which will still apply if spouses do not exercise the possibility that is now allowed to them (section 2). Following this, a panoramic view of the newly introduced rules will be offered, highlighting the conditions necessary to permit such a possibility (section 3). Finally, some concluding remarks will be made, highlighting the advantages and drawbacks of the new legal framework.
THE PREVIOUS REGIME
In the Portuguese legal system, the successorship position of the surviving spouse was significantly improved by a major reform that took place in 1977. As an expression of the horizontalisation of succession, the amendment entitled the surviving spouse to strong protection, abolishing the preference for blood ties which were to the detriment of the marital link. From that moment on, the surviving spouse was qualified, not only as intestate heir, but also as forced heir of his/her deceased spouse.