Donations Between Spouses

Opinion piece by Bárbara Figueiredo published [in Portuguese] in the Diário de Coimbra newspaper

In Portuguese law, the legal concept of donation is established as a contract through which one person transfers an asset or right to another, free of charge and at their own expense. But when the parties involved are also married, what specific legal framework applies?

Given the financial effects of marriage, as well as the rules governing property regimes—designed, among other things, to protect third parties engaged in legal or commercial relationships with the spouses—donations between married couples are subject to specific regulations. These rules take into account the special relationship between the parties and the financial implications of such transactions.

First and foremost, if the mandatory separation of property regime applies (as in marriages conducted without prior completion of preliminary procedures or marriages where one spouse is over sixty years old), donations between spouses are not permitted. This restriction exists to prevent an indirect circumvention of the mandatory property regime. When donations are allowed, they can only involve the donor spouse’s separate property, meaning that donated assets never become part of the couple’s joint estate, regardless of the applicable property regime.

Furthermore, unlike donations between unmarried individuals, donations of movable assets between spouses must always be made in writing, even when the asset is physically handed over. Additionally, reciprocal donations in a single act are not permitted, as this rule aims to prevent one spouse from being unduly influenced by the other’s donation.

Even when permitted under these conditions, donations between spouses can be unilaterally revoked at any time by the donor spouse. This right to revoke cannot be waived by the spouses, though it does not extend to the donor’s heirs in case of death. A donation also expires if the recipient spouse dies before the donor, unless the donor confirms the donation within three years of the recipient’s death. Donations are similarly voided in cases of annulment, nullity of marriage, or divorce, as the latter entails the loss of any benefits received or expected from the other spouse. When a donation expires, the donated asset automatically reverts to the donor’s estate.

In conclusion, while donations between spouses are legally permissible under certain conditions, the pre-existing marital relationship and its financial implications mean that the dissolution of that relationship often results in the donation’s expiration.