The donations to the surviving spouse and their subjection to collation | 2017

Author(s) Gabriela da Costa Oliveira
Advisor(s) Cristina Dias
Year 2017

Synopsis The collation – restitution to the mass of the inheritance of goods and/or values that have been donated to the presumptive legitimate(s) heir(s), at the date of the donation, by the deceased, from those who have decided to run for his succession – was defined in the 1966 Civil Code, thinking only of the contest between descendants, since they were the only legitimate heirs of the author of the succession and its purpose was to respect the will of the deceased, which would presumably be not favoring one or more descendants to the detriment of the others. The Decree-Law nº469/77, of November 25, complicates this situation, since, although no changes were made to the list of heirs subject to collation, the surviving spouse became a legitimate heir, along with the descendants, which raised the question of whether, owing to his new inheritance status, the surviving spouse should or should not be obligated to collate. With the objective of finding an answer to this question, we began by studying the institute of collation, namely its notion and objective, its historical evolution and its fields of objective and subjective application, presenting brief comparative law perspectives. Next, we inserted the collation into the current national succession phenomenon, mainly considering its relation to the moment of sharing the heritance. This is a first phase, which presents a contextualising function of the dissertation problema-object. In a second and last part, we reflected on the donations that can be made in the life of the author of the succession, comparing the general and the collation regimes of the donations made by this one to the descendants and to the surviving spouse, to then study the position of the latter in the Portuguese Civil Law throughout the time. That’s how we came to the central point of the dissertation, where we presented the three dominant doctrinal positions on the question of subjecting donations between spouses to the collation and we discussed the solution given to this question in some foreign legal systems, which led us to the conclusion that we can not withdraw from the law the subjection of the surviving spouse to the collation, which nevertheless benefits from the collation operated between the descendants. However, we believe that the most fair and adequate solution would be to insert the surviving spouse into that cast of heirs forced to collate.

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