Living in Portugal? Portuguese law decides your estate unless your will says otherwise

Start by retiring the pub version, which says Portugal takes two thirds of your estate no matter what you write. Portugal takes nothing of the sort. What Portuguese law does, if it applies, is reserve a fixed share of your estate for close family, the legitima, and let you dispose freely of the rest. The real questions are whether Portuguese law applies to you at all, and whether its reserved shares would send your estate where you want it to go. For a lot of families the answers are "yes, by default" and "roughly, yes". For second marriages, stepchildren, unequal gifts and unmarried partners, the answer to the second question is no, and the fix sits inside your will.

The default nobody chose

Since 2015, succession across most of the EU, Portugal included, has run on one rule: the law of the country where you habitually live governs your estate as a whole, wherever the assets sit. Live in Lagos or Lisbon, and that is Portuguese law. It doesn't matter that Britain never joined the regulation; Portugal applies it to everyone within its reach, British residents included.

Portuguese law's reserved shares are specific. A spouse alone is entitled to half the estate. A spouse and children together are entitled to two thirds between them. Children alone: half for an only child, two thirds where there are two or more. Parents come into it only when there are no children. Those shares bind regardless of what a will says, and the freely disposable part is what remains.

If your family is the standard shape (married, children from the same marriage, everything to each other then the kids), the default lands close to what you'd have chosen anyway. The default bites when your life doesn't match the statute's template. A second marriage where you want your own children protected, or your new spouse protected, in proportions you chose. Stepchildren, who are not your legal children and get nothing automatically. A gift you wanted weighted towards one child. Or the largest gap of all, below.

The partner Portugal doesn't count

Portuguese succession law does not make an unmarried partner an heir. Not a forced heir, and not an heir on intestacy either: the classes run spouse and descendants, then spouse and ascendants, then siblings, then cousins out to the fourth degree, then the state. A partner, even in a formally recognised uniao de facto, is not in the list. There are limited protections, the right to stay in the family home for a period among them, but no inheritance.

Portugal's tax rules treat a recognised de facto partner like a spouse, exempt from the 10% stamp duty on inheritances. Your partner can receive your estate tax free. They just won't receive it at all unless a will says so. Tax free, and by default nothing to be taxed. The will is the only fix.

The one clause

The same regulation that imposes the default also hands you the exit. Article 22 lets you choose the law of your nationality to govern your whole succession, and the choice is made in a will. For a British national with English connections that choice points to the law of England and Wales, which imposes no fixed reserved shares, so your will rather than a statutory formula is the starting point. Family and dependants can still ask an English court for provision under the 1975 Act, which is a different and narrower thing than automatic shares. The regulation applies the chosen law even though Britain never signed up, and it disapplies renvoi for a chosen law, so the choice holds as a matter of applicable law.

Three footnotes. First, the clause has been standard in properly drafted expat wills since 2015; wills written before then, and cheap wills written since without cross border thought, almost never contain it. A transitional rule can deem an old English will to have chosen English law, but deemed choices invite argument in a way one express sentence does not. Second, "British" is not one law: this article and our product concern the law of England and Wales; Scots law has its own legal rights regime. Third, choosing English law restores freedom, and freedom cuts both ways: it removes the automatic shares that would otherwise protect family members, which is exactly why the choice belongs in a properly drafted will rather than a template.

What the clause doesn't change

Tax. None of it. The election picks the succession law; Portugal's tax rules and Britain's carry on regardless.

Portugal abolished inheritance tax in 2004. What remains is stamp duty at 10% on gratuitous transfers of Portuguese assets, and spouses, descendants, ascendants and recognised de facto partners are exempt. Inherited property does not attract the extra 0.8% property stamp duty either; that applies to lifetime gifts of property, not to inheritances. So a spouse or child inheriting the Algarve villa typically pays no Portuguese tax on it at all. What does exist is a deadline: the death must be declared to the tax office by the end of the third month after the month of death, which comes round quickly after a death.

The British side has a longer reach. Under the rules in force since April 2025, if you were UK resident for 10 of the previous 20 tax years, leaving starts a tail of three to ten years during which your worldwide estate stays within UK inheritance tax, and UK assets stay within it permanently. Many who left Britain in the last decade are still inside that tail. There is no UK and Portugal inheritance tax treaty; the new double tax convention that entered into force at the end of 2025 covers income and gains, not inheritance. Where both systems could bite, that is planning territory with a professional, and no will clause substitutes for it.

The week after

However elegant the law, the process is Portuguese. On notification of a death the bank freezes the deceased's share of the accounts; Banco de Portugal's guidance says a joint holder keeps access only to their own share. Releasing the rest waits on the habilitacao de herdeiros, the notarial deed that formally identifies the heirs, and on the stamp duty position being settled. In practice every heir needs a Portuguese tax number, including heirs who have never set foot in Portugal, and foreign documents need translation and, in practice, apostilles. Portuguese practice recognises no English style survivorship on jointly owned property: the deceased's share passes through the succession, and does not pass automatically to the co owner.

No clause skips the habilitacao. A will that names the heirs and states its choice of law shortens it from months of argument to a notary appointment. The gov.uk guidance for a death in Portugal adds the practicalities: local funerals typically happen within about 72 hours, repatriation is the alternative, and cremation abroad should be avoided if a coroner's inquest in England and Wales might be wanted.

What to do this month

1. Make or remake the will with the choice of law clause in it. A will that predates 2015 almost never contains the express election; a will that predates your current family shape fails twice over.
2. If you are unmarried, do it first. Your partner inherits nothing by default, however long you have been together and whatever the tax exemption implies.
3. List the Portuguese assets against the UK ones, so your executors know which system touches what, and expect no survivorship on the villa's title.
4. Get every likely heir a Portuguese NIF in slow time; doing it in a hurry from Britain after a death is the worst version of the errand.
5. Diarise the reality of the three month declaration for whoever will handle things, and keep accessible money in each partner's sole name while the process runs.
6. If your estate is large on both sides of the tail, take proper cross border tax advice; the will fixes succession, and only succession.

An Expat Legacy will is drafted under the law of England and Wales around expat circumstances, with the choice of law considered as part of the drafting, and reviewed by a person before your documents are released: £149 for a single will, £249 for mirror wills for a couple. Portugal will apply the law your will chooses. Choose it on purpose.

Sources

• Regulation (EU) No 650/2012, Articles 21, 22, 34 and 83 (EUR-Lex)
• Portuguese Civil Code, article 2159 (consolidated text, informador.pt)
• Portuguese Civil Code, article 2133 (consolidated text, informador.pt)
• Código do Imposto do Selo, article 6 (Portal das Finanças)
• Código do Imposto do Selo, article 26 (Portal das Finanças)
• Inheritance Tax if you die when based outside the UK (GOV.UK)
• Portugal: tax treaties (GOV.UK)
• When someone dies in Portugal (GOV.UK)

Expat Legacy provides England and Wales wills and general information about cross-border estate planning. This is general information only. It is not legal or tax advice for your circumstances; Portuguese procedures and tax treatment depend on individual facts and can change, and for Portuguese property, notarial or tax matters you should engage a qualified professional in Portugal. Scots law differs from the law of England and Wales. Position stated as at August 2026.