PORTUGAL Law and Practice Contributed by: Miguel Durham Agrellos, Paulo da Rocha Pichel, Ricardo Pereira Amaro and Francisco Duque Lima, Durham Agrellos
2.3 Forced Heirship Laws Descendants and spouses (notwithstanding the mari - tal property regime) and – in the absence of descend - ants – ascendants, are forced heirs. The percentage of the value of the assets they are entitled to varies between one third and two thirds. Nevertheless, since August 2018, it has been possible for spouses to enter into a prenuptial agreement waiving their right to inherit. The effectiveness of this agreement depends on the choice of the separation-of-property regime (see 2.4 Marital Property ). In any case, this agreement will not restrict the surviving spouse’s right to use the family residence for at least five years. 2.4 Marital Property The Portuguese civil code establishes three regimes to regulate marital property: • general community of estate – all combined prop - erty is considered joint; • estate subsequent to marriage – only property earned during the marriage is considered joint property (framework applicable by default); and • separation of property between spouses. If the separation-of-property regime does not apply, the consent of the other spouse is particularly relevant in the transfer of immovable property. 2.5 Transfer of Property From a tax perspective, the transfer of property may imply a step-up of the asset value. 2.6 Transfer of Assets: Vehicle and Planning Mechanisms See 1.1 Tax Regimes , particularly the material on exclusions and exemptions on stamp tax, applicable to donations and succession. 2.7 Transfer of Assets: Digital Assets No special rules apply to the transfer of digital assets. There is no relevant case law in Portugal concerning digital assets.
• Resistance to succession – in a significant number of family-owned businesses, the founder is still a member of the board and demands to take part in the current decision-making process; some resist - ance to innovation or alternative financing sources may, consequently, be identified. • First real generation crisis – a significant number of family-owned businesses in Portugal were founded in the 1980s; thus, families are now facing the chal - lenge of turning over the firm to the third genera - tion. • Lack of succession planning – although there has been a shift in recent years, a significant number of families still do not invest in preparation for the succession process. • Informality – most families do not constitute family councils or family business agreements to dis - cuss the management of the family businesses or assets; although this is beginning to change, there is still a certain degree of informality that threat - ens the stability and rationality of decision-making processes. 2.2 International Planning The transnational dimension of succession planning implies additional concerns regarding the applicable laws, the coherence of the succession process and the tax implications in the different jurisdictions. International succession planning is simultaneously a challenge and an opportunity to choose the applicable law in accordance with the best interests of the testa - tor. Determining the applicable law (when possible) is therefore an important part of the succession planning process. As different jurisdictions may be involved, avoiding clashes is of the utmost importance, particularly in ensuring the smooth transition of the assets. If pos - sible, submitting the regulation of the succession to the same jurisdiction is preferable. That goal may jus - tify the modification of the assets’ detention struc - ture or its location. Other areas of law should also be considered in this context, particularly family law and company law. Regarding tax concerns, see 1. Tax .
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