Preparing a will and testament in Madeira requires careful knowledge of Portuguese succession law. The system balances testamentary freedom with strong protection for legitimate heirs.
Because Madeira follows Portuguese civil law, spouses, descendants, and ascendants enjoy special legal rights that cannot be disregarded. Therefore, individuals must plan their estate considering both the available disposable portion and the legally reserved share.
Read more about Inheritance Law in Madeira: A Guide for Expat Families.
Disinheritance of Children
Under Portuguese law, children are legitimate heirs and cannot be excluded. However, disinheritance is permitted in specific circumstances.
A valid will must expressly state the legal grounds for disinheritance, which must also be proven. The law allows disinheritance only when the heir has committed certain acts, such as:
- A serious intentional crime against the deceased, their spouse, or close relatives, punishable by more than six months’ imprisonment.
- False accusation or perjury against the same family circle.Unjustified refusal to provide legally due maintenance to the deceased or their spouse.
Courts have emphasised that the cause must be legally established. For example, refusal of maintenance is only valid if there was a binding obligation previously recognised or an agreement.
Hierarchy of Heirs
The will and testament in Madeira must respect the hierarchy of heirs established in Portuguese law. The order of succession is strict and cannot be altered freely.
The hierarchy is as follows:
- Spouse and descendants (children, grandchildren, great-grandchildren).
- Spouse and ascendants (parents, grandparents).
- Brothers and their descendants.
- Other collateral relatives up to the fourth degree.
- The State, if no heirs exist.
Within each class, heirs of the same degree share equally. The spouse’s share, however, may not be less than one quarter of the estate.
Legitimate Heirs and Reserved Shares
Portuguese law designates the spouse, descendants, and ascendants as legitimate heirs. Their reserved portion is protected and cannot be freely disposed of in a will.
For example, if a deceased leaves both a spouse and children, the estate is divided by headcount, but the spouse’s share cannot fall below one-quarter. If there is no surviving spouse, children inherit in equal shares.
This regime ensures that close family members remain protected, regardless of testamentary dispositions.
Testamentary Freedom and Its Limits
Although individuals may draft a will and testament in Madeira to reflect personal wishes, they must respect these mandatory rules. Testamentary freedom exists only within the disposable portion of the estate.
Disinheritance, as mentioned, is exceptional and strictly limited to the legal causes expressly provided in the Civil Code. Any attempt to disinherit outside these causes will be declared invalid by the courts.
Conclusion about Will and Testament in Madeira
Drafting a will and testament in Madeira requires balancing personal intentions with legal obligations to legitimate heirs. Disinheritance is possible only in narrowly defined cases, and the hierarchy of heirs cannot be altered. Professional advice ensures compliance with Portuguese succession law while maximising the flexibility available to testators.
This article is for informational purposes only. It does not constitute legal advice. Professional consultation with a qualified lawyer is essential for tailored guidance on wills and inheritance in Madeira.
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