The Convenção Antenupcial in Portugal in 2026: A Practical Guide to the Prenuptial Deed, the Waiver of Forced-Heir Rights That Only Works Under Separação de Bens, and the Five Years in the Family Home It Leaves Behind

Most people who move to Portugal already married discover Portuguese succession law at the worst possible moment. The discovery is usually this: you cannot leave your estate to whoever you like. A fixed share of it, the legítima, belongs by law to a defined set of relatives, and your surviving spouse is one of them. No will can override that share.

There is exactly one lawful way for a married couple in Portugal to write each other out of that reserved share, and it is narrow. Since 1 September 2018, spouses may renounce, reciprocally, their status as each other's forced heir. The renunciation has to go in a convenção antenupcial (prenuptial agreement). It only works if the property regime is separação de bens (separation of property). And it comes with a set of protections for the survivor that you cannot contract away.

This guide sets out what a convenção antenupcial is, what it can and cannot contain, what the legítima actually takes, how the 2018 waiver works, what it leaves the surviving spouse, and which law applies if you are an international couple.

What a convenção antenupcial is

Article 1698 of the Código Civil (Civil Code) gives engaged couples freedom to fix the property regime of their marriage, either by picking one of the regimes the Code provides or by drafting their own terms within the limits of the law. The document that does this is the convenção antenupcial.

It is made in one of two forms, under Article 1710: by declaration before a civil registry official, or by public deed before a notary. Nothing else counts.

Three timing rules matter, and immigrants planning a wedding around a visa or a move trip over them often:

• It lapses after a year. Article 1716: the convenção lapses if the marriage is not celebrated within one year. It also lapses if the marriage is later declared null or annulled, subject to the rules on putative marriage.
• It is freely changeable until the wedding. Article 1712: the convenção can be revoked or modified at any point up to the celebration of the marriage, provided everyone who signed it (or their heirs) agrees, and the new agreement has to meet the same form and publicity requirements.
• It binds third parties only once registered. Article 1711: the convenção produces effects against third parties only after registration. Heirs of the spouses and of the other signatories are not treated as third parties. Registration of the convenção does not substitute for any property registration the facts require.

What happens if you sign nothing

Article 1717 answers that: in the absence of a convenção antenupcial, or where the convenção has lapsed, is invalid or is ineffective, the marriage is treated as celebrated under comunhão de adquiridos. That is Portugal's default. Each spouse keeps what they brought in and what they inherit or receive as a gift; what is acquired during the marriage is common.

Two situations override the default and the couple's choice alike. Article 1720 provides that a marriage is always treated as contracted under separação de bens where:

• the marriage was celebrated without the preliminary marriage process having taken place; or
• the marriage was celebrated by someone who has turned sixty.

That second limb is the one that catches people. If either spouse has reached sixty at the date of the marriage, separation of property is imperative, whatever the couple would have preferred. Article 1720 does add that this does not stop the engaged couple from making gifts to each other.

Article 1699 then lists what a convenção can never do: regulate the hereditary succession of the spouses or of a third party, except as the following articles permit; alter parental or marital rights and duties; alter the rules on administration of the couple's assets; or make communicable the assets listed in Article 1733. And where the marriage is celebrated by someone who has children, even adult children, comunhão geral de bens cannot be agreed, nor can the assets in Article 1722(1) be made communicable.

The legítima: what the law reserves

Article 2156 defines the legítima as the portion of assets the testator cannot dispose of, because the law assigns it to the forced heirs. Article 2157 names them: the spouse, the descendants and the ascendants, in the order and according to the rules for intestate succession.

The shares are fixed:

• Spouse alone, with no descendants or ascendants: half the estate (Article 2158).
• Spouse and children together: two thirds of the estate (Article 2159(1)).
• Children with no surviving spouse: half the estate if there is one child, two thirds if there are two or more (Article 2159(2)).
• Spouse and ascendants together: two thirds of the estate (Article 2161(1)).
• Ascendants with no descendants and no surviving spouse: half if the parents are called, a third if it is grandparents or beyond (Article 2161(2)).

Article 2162 sets out how the legítima is calculated: on the value of the assets in the deceased's estate at the date of death, plus the value of assets given away in life, plus the expenses subject to collation, less the debts of the estate. Article 2163 forbids the testator from imposing charges on the legítima or from designating which assets will make it up, against the heir's wishes.

For a couple with children, then, the arithmetic is stark: two thirds of the estate is spoken for, and the surviving spouse sits inside that two thirds alongside the children. Only the remaining third is freely disposable.

The 2018 waiver, and its one condition

Lei n.º 48/2018, in force since 1 September 2018, added a new paragraph (c) to Article 1700(1) of the Civil Code. A convenção antenupcial may now contain the reciprocal renunciation of the status of forced heir of the other spouse.

The condition is set out in the new Article 1700(3), and it is absolute: this stipulation is admitted only where the property regime, whether chosen by the couple or imposed by law, is separation. A couple under comunhão de adquiridos or comunhão geral cannot use it. A couple where one spouse has turned sixty is already under imperative separation by Article 1720, so the route is open to them by operation of law.

Note the word reciprocal in Article 1700(1)(c). This is not a device for one spouse to strip the other; both give up the same status. The new Article 1707.º-A(1) does, however, allow the renunciation to be made conditional on the survival or non-survival of successors of any class, or of other people, under Article 1713, and it expressly says the condition itself need not be reciprocal.

What the waiver does not take away

Article 1707.º-A is the heart of the reform, because it defines the floor beneath the surviving spouse. The renunciation affects the spouse's succession position and nothing else. In particular, under Article 1707.º-A(2), it does not prejudice the surviving spouse's right to maintenance under Article 2018, nor social benefits payable on death.

Then there is the family home, which is where most of the practical protection sits. Where the casa de morada de família belonged to the deceased:

• Five years in the house. The surviving spouse may remain there for five years, holding a real right of habitation and a right to use the contents (Article 1707.º-A(3)).
• A court can extend that. Exceptionally and on grounds of equity, a court may extend the five years, taking into account any particular hardship the survivor is in, for whatever reason (Article 1707.º-A(4)).
• Use it or lose it. The right lapses if the survivor does not live in the house for more than a year, unless the reason for the absence is not attributable to them (Article 1707.º-A(5)).
• It is not granted to a survivor who already has a home nearby. Specifically, where the survivor owns a house in the council where the family home is, or, if the family home is in Lisbon or Porto, in that council or a neighbouring one (Article 1707.º-A(6)).
• After the five years, tenancy rather than eviction. The survivor has the right to stay on in the property as a tenant on general market terms, and to remain there until that tenancy is signed, unless the owners meet the legal requirements for a landlord to terminate a residential lease, with the necessary adaptations (Article 1707.º-A(7)). Where the parties cannot agree the terms, a court may fix them (Article 1707.º-A(8)).
• First refusal on a sale. The survivor has a right of preference if the property is sold, for as long as they live there on any basis (Article 1707.º-A(9)).
• Sixty-five changes everything. If the surviving spouse has turned 65 at the date the succession opens, the right of habitation under paragraph 3 is for life (Article 1707.º-A(10)).

Lei n.º 48/2018 also amended Article 2168 of the Civil Code, adding a second paragraph: gifts in favour of a surviving spouse who renounced the inheritance under Article 1700(1)(c) are not inofficious, up to the part of the estate that would have corresponded to that spouse's legítima had the renunciation not existed. In plain terms, the renouncing spouse can still be given, in life or by will, up to what the legítima would have been, without the gift being cut back at the children's request.

You cannot change your mind later

Article 1714 states the principle of immutability: outside the cases the law provides, neither convenções antenupciais nor the legally fixed property regimes may be altered after the marriage has been celebrated. The same article treats contracts of sale and of partnership between spouses as caught by that prohibition, except where the spouses are judicially separated of persons and property, while expressly permitting both spouses to hold shares in the same capital company and permitting a debtor spouse to make a dation in payment to the other.

Article 1715 lists the exceptions. Changes to the property regime are admitted by revocation of the dispositions in Article 1700 in the cases and forms Articles 1701 to 1707 permit, by simple judicial separation of property, by judicial separation of persons and property, and in all other cases the law provides for separation of property during the marriage. Article 1711 on publicity applies to those changes too.

This is the single most important practical point in this guide. There is no Portuguese equivalent of the post-nuptial agreement that simply switches your regime because you have changed your mind. If you want separation of property, and if you want the forced-heir waiver that only separation unlocks, it has to be done before the wedding.

International couples: which law even applies

If you married abroad, or you and your spouse hold different nationalities, the prior question is whether Portuguese law governs your matrimonial property regime at all. Regulation (EU) 2016/1103 answers it, and it has applied since 29 January 2019.

Its transitional rule is precise. Under Article 69(3), the chapter on applicable law applies only to spouses who marry, or who specify the law applicable to their matrimonial property regime, after 29 January 2019. Couples married before that date are outside it unless they make a choice of law afterwards.

Where it does apply:

• Choice is possible but limited. Under Article 22, spouses or future spouses may designate or change the applicable law, but only to the law of a State where one of them is habitually resident at the time of the agreement, or the law of a State of nationality of either of them at that time. A change made during the marriage has prospective effect only unless the spouses agree otherwise, and any retroactive change cannot prejudice third-party rights.
• The choice has to be in writing. Article 23: written, dated and signed by both spouses, with electronic communication that provides a durable record treated as equivalent to writing. If the Member State where both are habitually resident imposes additional formal requirements for matrimonial property agreements, those apply as well. Where the spouses are habitually resident in different Member States with different formalities, meeting either State's requirements is enough.
• If you choose nothing, a cascade decides. Article 26: the law of the State of the spouses' first common habitual residence after the marriage; failing that, of their common nationality at the time of the marriage; failing that, of the State with which they jointly had the closest connection at that time. Where there is more than one common nationality, the nationality limb drops out.
• One law covers everything you own. Article 21: the applicable law governs all assets falling under the regime, wherever they are located.

Two warnings. First, this regulation decides the law of your matrimonial property regime; it does not decide the law of your estate, which is a separate question governed by a separate EU instrument. Our guide to inheritance and wills in Portugal for foreigners covers that side. Second, a couple who moved to Portugal and made it their first common habitual residence after marrying may find Portuguese law applying to their property regime by default, and with it Article 1717's comunhão de adquiridos, whatever their home country would have assumed.

What it costs

The Instituto dos Registos e do Notariado publishes the emolument table for registry acts. The relevant lines:

• 100 euros for a convenção antenupcial, its alteration or revocation, where one of the standard regimes set out in the Civil Code is agreed.
• 160 euros for a convenção antenupcial, its alteration or revocation, where an atypical property regime is agreed.
• 30 euros to register the convenção, or an alteration to it, where it was made before a body other than a civil registry office.

A convenção drafted to include the forced-heir waiver is a document that needs drafting properly, so legal fees are a separate and larger line. We did not find an official fee scale for that work, and we are not going to invent one.

What this means for you

• If you are marrying in Portugal and want separation of property, say so before the wedding. The default takes over automatically under Article 1717 if you sign nothing, and Article 1714 means you cannot switch afterwards. Our guide to getting married in Portugal as a foreigner sets out the ceremony process the convenção has to precede.
• The forced-heir waiver is for second marriages and blended families more than anyone else. Its practical use is to let each spouse's estate pass to their own children without the other spouse taking a reserved share first. If that is not your situation, you probably do not need it.
• If either of you is sixty or over, separation is already imperative. Article 1720(1)(b) gets there without a convenção, which means the waiver in Article 1700(1)(c) is available to you if you want it. You still need the convenção to make the waiver itself.
• Do not expect the waiver to leave a survivor with nothing. Article 1707.º-A keeps maintenance, social death benefits, five years in the family home (for life if the survivor is 65 or over at death), a tenancy afterwards and a right of first refusal on a sale. Advice that promises a clean break is wrong.
• If you married abroad after 29 January 2019, work out your applicable law first. Regulation (EU) 2016/1103 may point at Portuguese law, at your nationality's law, or at the law of wherever you first lived together. Everything in this guide follows from that answer.
• Register it. Under Article 1711 the convenção binds third parties only once registered, which is the point at which it protects assets against a creditor of the other spouse rather than merely recording an intention between you.

A convenção antenupcial is one of the few documents in Portuguese family law with a hard deadline attached and no second chance: it has to exist before the marriage, it lapses if the marriage does not follow within a year, and the regime it sets is then fixed for the duration. For a couple with children from earlier relationships, and for anyone arriving in Portugal with assumptions formed in a common-law country, it is worth an hour with a lawyer well before the registry appointment.

Sources

This guide is written from official Portuguese and EU sources.

• Diário da República, Código Civil, Secção III, Convenções antenupciais (artigos 1698.º a 1716.º), consolidated text (Portuguese only)
• Diário da República, Código Civil, Secção IV, Regimes de bens (artigos 1717.º a 1720.º), consolidated text (Portuguese only)
• Diário da República, Código Civil, Artigo 1720.º, regime imperativo da separação de bens (Portuguese only)
• Diário da República, Código Civil, sucessão legitimária, Capítulo I (artigos 2156.º a 2166.º), consolidated text (Portuguese only)
• Diário da República, Lei n.º 48/2018, de 14 de agosto, which added Article 1700.º(1)(c), Article 1707.º-A and Article 2168.º(2) to the Código Civil (Portuguese only)
• European Union, Council Regulation (EU) 2016/1103 on matrimonial property regimes, consolidated Official Journal text (PDF)
• Instituto dos Registos e do Notariado, Custos dos serviços, Regulamento Emolumentar dos Registos e Notariado (Portuguese only)