A prenuptial agreement is an instrument through which future spouses define, before marriage, the property rules that will apply during their married life, adjusting the property regime to the couple’s actual needs. It can establish responsibilities for debts, define how the burdens of family life are shared, or include specific property provisions—provided that it complies with the legal limits set forth in Article 1699 of the Civil Code.
In practice, the prenuptial agreement functions as a mechanism for organization and protection. It avoids doubts about who owns what, prevents future conflicts, and ensures that each party knows in advance the property effects of the marriage. It is especially useful when there are significant personal assets, family businesses, significant investments, or property intended for other family members.
It was in this context that Law No. 48/2018 came into being, introducing an important innovation: the possibility for future spouses, when opting for the separation of property regime, to mutually waive their status as legitimate heirs.
This solution is particularly relevant in second or third marriages, when the aim is to ensure that the estate is exclusively intended for the children and not for the new spouse—and, consequently, their heirs. There is often a mistaken belief that separation of property prevents succession between spouses, but this is not the case: without express waiver, the spouse is always a legitimate heir.
A prenuptial agreement with waiver of the legitimate portion is therefore an effective legal mechanism for protecting previous family assets, ensuring balance between different assets, and avoiding future inheritance disputes.
It is also important to emphasize that the prenuptial agreement does not prevent either spouse from using a will at a later date to freely dispose of the assets covered by the disposable portion, particularly with the aim of protecting the surviving spouse, ensuring greater stability and security of assets.
Estate planning before marriage is now a necessity, not a formality. At CRS Advogados, we assist couples in defining the property regime and preparing prenuptial agreements tailored to their family circumstances, ensuring security, transparency, and future protection.
.
