Sharing situations sometimes become very complex, and there is a need for negotiation in order to satisfy the interests of those involved in a fair way.
ARTICLE PUBLISHED IN SEVERAL NEWSPAPERS AND RADIO STATIONS – 23/07/2025
For this to happen, there needs to be a clear and simple dialog between all the parties involved throughout the process. In this process, the parties can opt for the so-called alienation of a hereditary share, which consists of an heir selling his or her hereditary share to another heir or to a third party.
In these cases, as in any other, doubts can arise, often relating to taxation, such as the payment of capital gains.
Capital gains are defined, according to article 10 of the IRS Code, as gains obtained, other than business and professional income, capital or property, which may, among other situations, result from the onerous sale of real rights over immovable property, meaning that in principle it would apply to this case. However, it does not, as changes have been made in this direction.
Thus, when an heir sold his or her share of the estate, the question arose as to whether the heir who was selling his or her share would have to pay capital gains (or “income tax”). However, the Uniform Judgment
of the Supreme Administrative Court, no. 7/2025, dated April 29, 2025, answered these questions, clarifying that the transfer of a hereditary share does not constitute, for IRS purposes, an onerous alienation of rights in rem over immovable property. Unlike the sale of a specific asset of the inheritance, such as a property, the sale of the hereditary share
does not represent the transfer of ownership of specific assets, but rather the replacement of the position of one of the heirs within the inheritance. It is therefore a transfer of the legal position of heir and not a transfer of
assets.
Let’s imagine the following situation: Ana, Beatriz and Carolina inherited a property from their parents, and Carolina decided to sell her share of the estate to Beatriz. To this end, they drew up a deed of assignment, in which Carolina’s share was assigned to Beatriz for consideration. If there is an assignment, there is no actual sale or purchase of the property, which means that by selling her share, Carolina is seeing her position as heir replaced by Beatriz, and there is no transfer of the asset, and in turn no payment of capital gains.
On the other hand, if Ana, Beatriz and Carolina sold the property in question to a third party, it would be a sale and then they would be subject to the payment of capital gains, since in this case there was already a transfer of immovable property.
In short, despite all the controversial opinions, the transfer of a hereditary share is not subject to capital gains, which brings greater security and legal clarity to heirs. This ruling has thus clarified a number of doubts, facilitating interpretation and offering greater fiscal predictability in this type of transfer.
Judith Teodoro,
Lawyer
With the collaboration of the collegues,
Catarina Menezes and Filipa Cabral
