The inheritance disability of Article 2034, subparagraph a), of the Portuguese Civil Code – Can the specific and concrete judicial declaration of the criminal’s unworthyness be waived in relation to each of the inheritances later opened by the death of the persons referred to in that subparagraph?

João Paulo Remédio Marques

Keywords

Capacity to succeed; unworthiness to succeed; personality rights; relatives of the unworthy heir; res judicata; unconstitutionality.

Abstract

Unworthy conduct on the part of the heir or legatee may assume several different forms in Portuguese inheritance law.  One of them is against the life of the deceased, even if the murder has not been consummated. The judgment of the Portuguese Supreme Court of Justice of February 23, 2021 generates, in our opinion, a unconstitutional normative interpretation of Article 2034.º, subparagraph a), of the Civil Code, as it decided that “the declaration of unworthiness to succeed [due to the wilful murder] in relation to the succession with respect to the deceased extends to the succession of his spouse and closest family members (id est, mandatory heirs: herdeiros legitimários), not being necessary several declarations of inheritance unworthiness lawsuits”. The present study intends to demonstrate that this declaration of unworthiness to succeed made in the context of the criminal lawsuit directed against the heir (in this case, the wilful murderer) has relative effectiveness (inter partes) and cannot automatically extend to the persons mentioned in subparagraphs a) and b) of Article 2034 of the Civil Code, requiring specific and concrete judicial declarations of unworthiness (declaração de indignidade) in relation to the estates of these relatives if and when the criminal (murderer) survives the remaining heirs.