There is scarcely a day that passes without yet another tragic news report concerning a new case of domestic violence. Unfortunately, the number of such cases is alarming. According to the Annual Internal Security Report, cases of domestic violence against minors are increasing in Portugal. In 2023 alone, there were almost 1,000 reported cases.
A few days ago, the country awoke to yet another tragic piece of news: a woman was murdered by her husband, with a pair of scissors, in the presence of their two minor children, aged 6 and 14. This case, currently under investigation by the authorities, is paradigmatic of the multiple legal and social issues raised by facts of such gravity and shock.
Without discussing this specific case, it nevertheless serves as a starting point for reflecting upon two fundamental issues: whether the perpetrator of the homicide of their spouse may inherit from the victim and what becomes of children in situations involving domestic violence and homicide within the family.
The Inheritance Rights of an Offender
Under Portuguese law, succession opens at the moment of death, and the deceased’s legal successors - such as the spouse, descendants or ascendants - are called to succeed to the deceased’s legal estate, provided they possess legal capacity to inherit.
Although legal capacity to inherit is the general rule, there are exceptions. In other words, such capacity is not absolute: there are circumstances in which certain individuals are excluded from inheritance rights, as is the case with succession unworthiness.
Article 2034 of the Portuguese Civil Code establishes that any person convicted, as perpetrator or accomplice, of the intentional homicide of the deceased - even where the offence was not consummated - shall be deemed unworthy to inherit. Such unworthiness deprives that individual of any right to the estate. There is no room for concession: the perpetrator of such a reprehensible act cannot, in legal terms, benefit from the assets of the victim.
As Professor Remédio Marques aptly explains, the seriousness of homicide justifies the severance of any ethical and legal connection between the offender and the victim, including succession rights. Put more simply, the perpetrator of such a crime cannot inherit anything from the deceased and shall be deemed a possessor in bad faith should they exercise any control over estate assets, which must be immediately returned.
It should nevertheless be emphasised that succession unworthiness does not affect the descendants of the unworthy heir, who may inherit by way of representation pursuant to Article 2037 of the Civil Code. Nor does it prevent the unworthy individual from retaining gifts or donations received from the deceased, although such dispositions may be revoked on grounds of ingratitude under Article 974 of the Civil Code.
Since 2014, following the introduction of Article 69-A into the Portuguese Criminal Code, succession unworthiness may be declared directly within the criminal judgment as an ancillary penalty, thereby dispensing with the need to initiate separate proceedings for that purpose. Where this does not occur, proceedings for a declaration of unworthiness may be brought by the victim’s relatives within one year of the conviction or within two years from the opening of the succession.
If the convicted individual is the sole heir, it falls to the Public Prosecutor’s Office to bring such proceedings.
Children in Situations of Risk
This family tragedy also reflects a clear situation of danger for the children involved. Having witnessed the violence and lost their mother in such a brutal manner, the children are exposed to severe psychological harm. In such situations, Portuguese law - through the Law for the Protection of Children and Young People at Risk - requires swift intervention in order to safeguard the children’s safety and well-being.
Under the terms of the aforementioned law, where parents place their children’s safety or health at risk and there exists an emergency situation - namely an actual or imminent danger to the child’s life or a serious threat to the child’s physical or psychological integrity - the competent child protection authorities must intervene immediately in order to promote and safeguard the rights and protection of the children.
At the outset, the authorities must ensure that the children are protected and placed in a suitable environment. Subsequently, child protection proceedings shall be initiated in order to determine the children’s future care arrangements, which may involve relatives or other suitable persons capable of assuming responsibility for their care.
In the present case, given that the parent responsible for the offence is in pre-trial detention, any conviction may include disqualification from the exercise of parental responsibilities as an ancillary penalty, pursuant to Article 1913 of the Civil Code and Article 152 of the Criminal Code.
This measure, which may remain in force for a period of between one and ten years, seeks to protect the children from a harmful environment and to ensure that the offender maintains no influence whatsoever over their upbringing and well-being.
Even where such disqualification is not imposed within the criminal judgment, it may nonetheless be sought by the Public Prosecutor’s Office or by other family members through separate proceedings, thereby ensuring the priority protection of the children - not only because the parent has culpably breached duties of respect, assistance and care owed to the children, causing them serious harm, but also because the parent has demonstrated themselves incapable and unfit to fulfil such duties.
Distinction Between Offences
It is also crucial to distinguish between the offences of domestic violence and homicide.
Although both offences may arise within the same factual context, they protect different legal interests. Domestic violence protects the victim’s dignity and physical and psychological integrity, whereas homicide protects the right to life.
For this reason, each offence is treated independently, and the offender may be convicted of both offences, including ancillary penalties aimed at reinforcing justice and the protection of victims.
A Legal and Social Response
Situations of this nature require a rigorous legal response and prompt action by the authorities, but they also invite us, as a society, to reflect upon the prevention of violence and the protection of its victims.
In a State governed by the rule of law, it is inconceivable that the perpetrator of such a heinous crime should profit from the victim’s estate or continue to exercise parental responsibilities over children traumatised by their actions.
Succession unworthiness and disqualification from the exercise of parental responsibilities are therefore essential legal instruments for restoring a degree of justice and protecting the most vulnerable in circumstances marked by irreparable loss and immeasurable suffering.
