Forced Heirship: Family Protection vs. Freedom of Will

Opinion piece by Bárbara Figueiredo published [in Portuguese] in the Diário de Coimbra newspaper

Under Portuguese succession law, legítima (forced heirship) refers to the portion of an estate that the law mandatorily reserves for certain heirs (heirs entitled to a reserved share), irrespective of the deceased’s will. This legal mechanism aims to protect the immediate family — namely descendants, ascendants, and the surviving spouse — by ensuring they receive a minimum share of the estate, even against contrary testamentary provisions.

According to the Portuguese Civil Code, the legítima is inalienable: the testator may freely dispose only of the disposable portion of the estate. Where children or grandchildren exist, they are collectively entitled to at least two-thirds of the estate. In the absence of descendants, but with surviving ascendants, half of the estate constitutes the legítima. The surviving spouse is also entitled to a share, whether in concurrence with descendants or ascendants, or standing alone.

This model seeks to uphold family ties and prevent the exclusion or abandonment of close relatives. However, it has increasingly become the subject of criticism or, at the very least, scrutiny. At its core lies the question of whether such a rigid protective framework imposes an undue restriction on an individual’s autonomy to dispose of their estate, particularly in complex or strained family circumstances where the testator may wish to make alternative arrangements.

Although the law does provide, in exceptional cases set out in Article 2034 of the Civil Code, that a specific heir may be deemed unworthy (indigno), the grounds for such disqualification are narrowly defined and limited to particularly serious criminal conduct.

The debate around legítima thus exposes a tension between two fundamental principles: on one hand, family solidarity and the social function of inheritance; on the other, private autonomy and the right to dispose of property freely after death. In certain legal systems (notably those rooted in common law), testamentary freedom is nearly absolute, offering greater flexibility but also allowing for severe familial exclusion.

In Portugal, despite increasing doubts, the structure of legítima has remained virtually unchanged. Nevertheless, evolving family dynamics — such as blended families, de facto unions, and non-traditional relationships — present new challenges to the rigidity of the system.

The legítima continues to play a crucial role in safeguarding heirs entitled to a reserved share. Still, it is worth questioning whether its absolute inviolability adequately reflects the diversity of today’s family realities. The search for a more balanced approach — between familial protection and freedom of will — may, in the not-too-distant future, lead to legislative reform that better aligns the law with the evolving needs of a changing society.