The division of the couple's assets and the "cabeça-de-casal" (executor)

What is the "cabeça-de-casal" (executor)?

In the inventory process for the distribution of the couple’s common assets, the “cabeça-de-casal” (executor) will be responsible for submitting the list of assets and managing the undivided estate until its distribution. The position is non-transferable and, as a rule, does not entitle the holder to any remuneration.

In what situations can there be a "cabeça-de-casal" (executor)?

In the case of separation, divorce, declaration of nullity, or annulment of marriage, if there are common assets of the couple to be shared, such distribution can be done by agreement. In the absence of an agreement, the distribution will take place in the inventory process designed to distribute common assets, with one of the spouses assuming the position of “cabeça-de-casal.” (executor).  

There will also be a “cabeça-de-casal” (executor) whenever a succession is opened, regardless of whether there is an inventory for the inheritance distribution. For more information about the “cabeça-de-casal” (executor) in the context of a succession process, refer to our article at this link.

Who should be the "cabeça-de-casal" (executor)?

In the case of separation, divorce, declaration of nullity, or annulment of marriage, the older spouse will perform the functions of “cabeça-de-casal.” (executor)

The investment in the position of “cabeça-de-casal,” (executor) in the case of distribution resulting from separation, divorce, declaration of nullity, or annulment of marriage, does not depend on the appointment in inventory records and the judicial investiture resulting from them. The older spouse enters into the effective exercise of the administrative functions as soon as the divorce or judicial separation of property occurs.

Is the "cabeça-de-casal" (executor) obliged to accept the position?

If the appointed person is over 70 years old, they may excuse themselves from the position without having to invoke any other impediment. However, if the appointed person is under 70 years old, they can only excuse themselves by invoking the impossibility of performing the functions due to illness or incompatibility of the position of “cabeça-de-casal” (executor) with a public office they hold.

The request for excuse can only be submitted after being notified of the appointment to the position.

If both spouses validly request to be excused from the position, the court will appoint, after hearing both parties, a third person to assume the position of “cabeça-de-casal.” (executor).

Additionally, the “cabeça-de-casal” (executor) can be replaced in the exercise of functions by agreement between the parties.

What are the functions and obligations of the "cabeça-de-casal" (executor)?

It is the responsibility of the “cabeça-de-casal” (executor) to submit the initial request to initiate the process aimed at terminating the community of the couple’s assets.

The “cabeça-de-casal” (executor) is also responsible for preparing a list of all assets subject to inventory, accompanied by supporting documents of their status in the respective registry. If some of the assets are in the possession of the other spouse or a third party, and this constitutes an impediment to the listing of these assets by the “cabeça-de-casal,” (executor) they must request the court to notify the possessor to provide access to these assets and provide the necessary information to list the assets.

The list of assets should include the credits and debts of common assets, as well as the respective debtors and creditors, the identification of the assets that make up the undivided estate, and the identification of their respective values (1098 CPC ex vi 1084/2 CPC).

The “cabeça-de-casal” (executor) must annually account for the management of common assets.

Can the "cabeça-de-casal" (executor) be held responsible if they do not fulfill their obligations?

Yes, the “cabeça-de-casal” (executor) who does not manage the undivided estate with prudence and diligence, fails to comply with the duties imposed by law, or proves to be incompetent for the position, may be removed from the position at the request of the other spouse.

If the “cabeça-de-casal” (executor) uses the position to appropriate common assets or funds, they may be criminally liable.

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