Can a surviving spouse sell inherited assets? What does Portuguese law say?

Understands what can and cannot be done during the administration of an undivided inheritance.

When someone dies, their assets, rights, and obligations become an inheritance that will be distributed among the heirs. Until the division is completed, a representative of the estate is appointed, legally designated as the 'cabeça de casal'.

This figure has administrative responsibilities, but many heirs ask the same question: can the head of the estate sell inherited assets?

The answer is found in the Portuguese Civil Code and depends on various conditions. In this article, we explain what Portuguese law says and what can be done in each case, so that heirs are properly informed about their rights and duties.

The head of the household

The executor is the person responsible for administering the estate's assets during the period between the opening of the succession and the division of the assets. It can be the surviving spouse, an heir, an executor named in a will, or another legal representative, as defined in Articles 2079 and subsequent articles of the Portuguese Civil Code.

Your role is to conserve the assets, keep the estate in order, pay debts, and prepare the inheritance for distribution. However, this role is limited. The executor does not have total freedom to dispose of inherited assets without authorisation.

Can the head of the household sell inherited assets?

De acordo com a lei portuguesa, a resposta direta à pergunta "O cabeça de casal pode vender bens da herança?" é: No, except in exceptional circumstances. The inheritance assets belong to all heirs, undivided, until they are shared. Therefore, any decision involving the disposal of assets requires agreement between the heirs or judicial intervention.

The law provides for three possible scenarios:

Sale with agreement of all heirs

If all the heirs agree to the sale of a specific asset, the executor can carry out the sale. This consent must be documented in writing, ideally with notarised signatures, in order to avoid future disputes or challenges.

2. Sale to pay off inheritance debts

If there are debts associated with the inheritance that cannot be paid with cash or immediately realisable assets, the executor can propose the sale of an asset. This step again requires the consent of the heirs or, if that is not possible, a court order.

3. Court-authorised sale

In situations where there is no consensus among the heirs and a sale is necessary, the *cabeça de casal* (legal representative of the estate) can submit a request to the court, seeking authorisation to sell the property in question. The court will assess if the sale is justified and if it protects the collective interest of the heirs.

These limits are set out in Article 2088 of the Civil Code and are reinforced by various decisions of the Portuguese courts, which have been clarifying that the executor's function is one of administration, not disposal.

Consequences of selling without authorisation

If the executor of an estate sells assets from the inheritance without the consent of the remaining heirs or without a court decision, that sale can be annulled. Furthermore, they may be obliged to compensate the other heirs for any damages caused. In more serious situations, they can be held liable for breach of trust or mismanagement.

It is essential that all actions of the head of the estate are documented, with transparency and communication between all interested parties. Selling inheritance assets without a legal basis can not only invalidate the transaction but also harm the head of the estate themselves.

What should the heirs do

If you have doubts about how the inheritance is being managed or if you suspect the executor has made decisions without your authorisation, you should seek legal advice. Heirs have the right to be informed of all administrative actions and can take legal action to defend their interests.

Can you check the Justice.gov.pt Inheritance Guide For an overview of the succession process and the rights of heirs in Portugal.

The role of the lawyer in the succession process

A lawyer's support in inheritance matters is not just recommended, it is essential. The lawyer ensures that all actions taken by the executor are legal, defends the rights of the heirs, and oversees the process from the qualification to the division of assets.

Whenever there are doubts about whether the executor can sell inheritance assets, it is the lawyer who should be consulted to assess the documents, family context, and the legality of any act of administration or disposal of assets.

Conclusion

Responding to the question of whether the surviving spouse or civil partner can sell inheritance assets, Portuguese law is clear: only with the agreement of all heirs or with court authorisation. The surviving spouse or civil partner represents the inheritance but cannot freely dispose of it.

This is a role of responsibility, and strict adherence to the law is essential to ensure a fair distribution and avoid disputes between family members. In case of doubt or disagreement, the best course of action is to seek specialised legal advice in inheritance law.