Italian Law of Filiation: A Family Law Case Study

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Italian law of filiation: the legal rights of children born in and out of wedlock

De Tullio Law Firm provided legal expertise regarding the Italian law of filiation at the Supreme Court of Western Australia.

The parties involved in the case about paternity and inheritance rights emigrated to Australia from Italy in the 1960s. Before ruling on the case, the court needed to understand the Italian law of filiation.

Case Background

In this case study, although we have disguised names and circumstances, we outline the main aspects of the Italian law of filiation that The Supreme Court of Western Australia took into consideration when assessing whether or not Giovanna Rossi, the plaintiff, was a legitimate child of the late Giuseppe Rossi and was therefore entitled to claim a share of her father’s inheritance.

The plaintiff

The plaintiff, Giovanna, issued proceedings in the Supreme Court of Western Australia regarding inheritance of her father’s estate. Following his divorce from Giovanna’s mother, Mr. Rossi re-married and had other children.

Giovanna was born in 1950. Her father and mother were not married at the time. They did however get married a couple of years after Giovanna’s birth.

In Italy, at the time of Giovanna’s birth, it was illegal for fathers to recognise any children born out of wedlock. Giovanna’s birth certificate therefore gives her mother’s maiden name, Bianchi.

However, Giovanna’s birth certificate contains a note stipulating that Giovanna is the legitimate daughter of Mr. Giuseppe Rossi. The birth certificate annotation follows the marriage of Mr. Giuseppe Rossi and Ms. Sofia Bianchi in 1953.

The defendants

The defendants in this case are Giovanna’s half-siblings. They are the children from Mr. Giuseppe Rossi’s second marriage. The defendants dispute Giovanna’s legal rights as an heir and beneficiary to Mr. Rossi’s estate because Giovanna was an “illegitimate” child. They maintain that the subsequent marriage between Mr. Rossi and Ms. Bianchi did not automatically give Giovanna the status of a legitimate child.

What rights does the Italian law of filiation provide?

Firstly, the Italian law of filiation has abolished the old distinction between children born in and out of wedlock.

Constitutional law has driven important changes to legislation regarding filiation with the aim of guaranteeing equality. The consequence of this legislative process has been to stipulate a single status for all children.

Reform of Italian filiation law

Filiation law reform, Riforma della filiazione, modified the Italian Civil Code – in particular, Italian Law no. 219 of 10 December 2012.  This law states that illegitimate children – since reforms in 1975 to Italian family law, known as, “natural children” – must not be subject to any discrimination because of the circumstances of their birth.

All children are equal in the eyes of the Italian law

Both legitimate and natural children therefore have the same status: figlio. All children have equal rights and parents have a responsibility toward their offspring. A child has the right to receive care, education, assistance in case of need and a share of any inheritance.

In other words, the Italian Civil Code, as well as other Italian legislation referring to the relationships between parent and child, only permits the use of the word “child” (figlio/figlia). There is no longer any distinction such as, il/legitimate, natural or adopted.

The provision of a uniform status of filiation means that all children have the same rights to receive care, education, assistance in case of need and a share of any inheritance and parents are responsible for providing these rights. In addition, the express intention of Law 219 of 2012 extends parental responsibilities to parents’ relatives.

2012 filiation reforms are retroactive

The Filiation Reform (Law 201/2012) is applicable to all people, not only those born after a certain date. This means that the abolition of the distinction between legitimate and natural/illegitimate children is retroactive. In other words, it is applicable to parent-child relationships prior to the Law 219/2012 entering into force on 1st January 2013.

A major effect of the abolition of the distinction between natural children and legitimate children is that natural children have gained an equal right to succeed to their parents. They are entitled not only to inherit a share of their “natural” parents’ estate but also to inherit from other relatives of their parents.

How was Italian law different before reforms?

Prior to reforms, there was a huge difference between the status of legitimate and illegitimate children in Italy. Illegitimate children had none of the legal rights afforded to legitimate children.

When Giovanna was born in the 1950s, there were only two ways to legitimate children born out of wedlock and give them the status of figlio. Either the parents could marry after the birth or, the father could make a formal  statement to a notary, declaring that he was the father of the child.

Legittimato quale figlio

Giovanna’s birth certificate contains the phrase “legittimata quale figlia”. This means that following the marriage of her natural parents, Giovanna acquired the status of child. She went from the condition of being illegitimate to a condition where she was recognised as having the status of a legitimate child with all the accompanying rights of being a child.

This was in accordance with applicable Civil Code and legislation in force at that time. Also, as previously mentioned, following reforms to the Italian law of filiation, there is no longer any distinction in Italy between children born in or out of wedlock.

Case outcome

According to the Italian Law, Giovanna Rossi does have the status of a legitimate child of Mr. Giuseppe Rossi, both under current applicable Italian law, as well as under legislation applicable at the time of Mr. Rossi’s marriage to Ms. Bianchi.

The event of a marriage between her natural parents gave Giovanna the status of child and, legitimated her as a child of Giuseppe Rossi and Sofia Bianchi in accordance with legislation in force since February 1955.

The Italian Family Law reform of 2012 abolished any distinction between legitimate children and natural/illegitimate children.

The Supreme Court of Western Australia therefore judged that Giovanna was indeed the late Mr. Rossi’s legitimate child and, as such, was entitled to receive a portion of his estate as her inheritance.

Finally …

At De Tullio Law Firm we provide legal advice and support in all fields of Italian law. Our particular specialties are Italian and cross border property, inheritance and family matters. If we can be of assistance, please get in touch.

You may also be interested in Partition of Property among Family Members.
You may also like to watch our info videos on the subject of Italian inheritance law.

How To Protect An Italian Inheritance from Divorce

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How to protect an inheritance from divorce and/or separation

Separation and divorce are two of the most painful events in life. The decision to legally end a relationship can set off a long and difficult process. The upheavals and emotional challenges can be enormous. On top of this, complex legal and financial issues with short and long term implications need careful management. One aspect to consider when deciding to separate and/or divorce is how to protect an Italian inheritance.

An Italian inheritance might comprise property, movable and immovable assets and savings. Italian inheritance law specifically guarantees inheritance to so-called, “forced heirs”.

A consultation with a lawyer can provide an idea of the likely legal and financial outcomes of your situation. Generally, lawyers will provide a free initial consultation for this purpose. It is therefore worth seeking professional advice at an early stage.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

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While separation and divorce is a family crisis, it is crucial to have a clear understanding of how to protect an Italian inheritance in order to safeguard and guarantee children’s rights.

Indeed, children have the right to support from both their parents. Italian Constitution and Article 147 of the Italian Civil Code states that children have this right until they reach the age of 18.

Matrimonial regimes

In May 2015, Italy introduced the so-called, ‘quickie divorce law’. This cut the amount of time it can take to get a divorce from three years to as little as six months.

There can be important consequences on estate-related issues in divorce and/or separation. These can vary according to the matrimonial financial regime the couple chose at the time of, or during, their marriage.

Couples in Italy may choose between a matrimonial regime of either community of assets, comunione dei beni, or separation of assets, separazione dei beni.

If couples do not have a notarised deed stipulating they have chosen a separazione dei beni regime, Italian law takes the view that the matrimonial regime in place is the default comunione dei beni matrimonial regime.

Expat couples married elsewhere but resident in Italy are regarded as being married according to the comunione dei beni regime. This means a couple jointly owns all assets they acquire during their marriage. In the event of a divorce, each spouse will therefore receive an equal share of these assets.

However, there are exceptions. For instance, if a partner acquired a property prior to the marriage, or received a property after the marriage as a gift or an inheritance, this would not necessarily be split equally in the case of a divorce. It is therefore important to understand your matrimonial regime and check property deeds to see who actually owns what.

Finally …

Division of Italian assets between spouses in the event of divorce or separation depends on matrimonial regimes. It is important to understand if you own the property in common with your spouse. If you need assistance or would like to discuss your personal situation. please get in touch with us.

You may also like to watch our info videos.

Italian Inheritance Tax

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Do beneficiaries need to pay tax on Italian inheritance?

This is a question we are often asked at De Tullio Law Firm. The answer is yes. Beneficiaries need to pay Italian inheritance tax.

Who calculates Italian inheritance tax?

Get Your FREE Guide to Planning Your Inheritance in Italy

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When you become the beneficiary of an inheritance you may have to submit a statement of succession, “Dichiarazione di successione”  to the Italian tax authorities, “Agenzia delle Entrate”.

Firstly a succession procedure needs to be opened. Once this has happened, you can file the statement of succession. Although it is not always the case, the opening of a succession procedure usually coincides with a testator’s death. Your filing with the tax authorities should take place within 12 months of the succession procedure opening.

Once they receive the statement of succession, the tax authorities will calculate the amount of tax due on your inheritance.

It is worth noting however, that there is no obligation to file a statement of succession if the estate does not comprise any real estate. Likewise, if assets are valued at less than Euro 100,000 and the beneficiaries are a spouse, children and/or other direct heirs.

What is taxable?

In effect, Italian inheritance tax applies to the entire net value of the deceased’s estate. This therefore includes both movable and immovable assets.

Immovable assets include houses, shops, buildings, agricultural or building land.

Movable assets could for example include, boats, jewellery, works of art, bank and post office current accounts, money, investments such as shares, bonds, trust funds.

In addition, companies and shareholdings in companies are taxable. However, there are exceptions to this which would exempt heirs from inheritance tax.

How is Italian inheritance tax calculated?

Basic inheritance tax in Italy, “Imposta sulle Successioni” equates to 8% of the estate.

However, rates depend on the relationship of the beneficiary to the deceased.

The Italian inheritance tax rate drops to 6% between siblings, relatives up to the fourth degree cousins and relatives up to the third degree. This might for instance, be a spouse’s uncle. In the case of direct heirs such as the deceased’s children, spouse or registered partner, the applicable tax rate is 4%.

Summary of Italian inheritance tax rates

Heir Rate (Aliquota) Exemption up to
Spouse, relatives in the direct line of descent  (parents, grandparents, children, children’s children…) 4% 1.000.000 euro
Brothers and sisters 6% 100.000 euro
Other relatives up to grade 4, related in the direct line of descent, related in a collateral line up to grade 3 6% No exemption
Other subjects 8% No exemption

Finally …

Because Italian inheritance can be a complex matter and each case is different, we recommend that you seek expert support and advice.

If you wish to discuss your case with us or you are feeling unsure about anything related to Italian inheritance, do not hesitate to contact us for a free preliminary consultation.

You may also be interested In Planning for the future: your Italian holiday home.

You may also like to watch our info videos on the subject of Italian inheritance law.

De Tullio International Law Firm

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De Tullio International Law Firm. Solid, strong, stable legal expertise

At De Tullio Law Firm we provide independent legal advice in all areas of the law. The majority of our work focuses on managing a wide range of Italian and cross border legal matters. We are specialists in property, family and inheritance law.

A passion for the law led us here

De Tullio Law Firm: Combined experience of 55 years

Giovanni De Tullio. Founding Partner at De Tullio Law Firm.

Giovanni De Tullio founded De Tullio Law Firm in 1965. In addition to being a lawyer, Giovanni was a notary (notaio) for over 30 years. As a result, Giovanni brings tremendous experience and knowledge of Italian legislation to the team. Whether clients are purchasing or selling a home, gifting a home to a child, making a will or incorporating a company in Italy, Giovanni’s understanding of the Italian State’s requirements is an invaluable resource.

Following in his father’s footsteps, Giandomenico De Tullio also became a lawyer.

Giandomenico De Tullio. Managing Partner.

After a decade working overseas at international legal firms, as well as at the European Commission, Giandomenico joined Giovanni at De Tullio Law Firm.

Aside from being a member of The Italian Bar Association, Giandomenico is also a full member of Society of Trusts and Estate Practitioners. STEP is the world’s leading professional body for practitioners in the fields of trusts, estates and related issues.

Giandomenico is also an active representative in a number of not-for-profit government organisations whose aim is to develop and promote economic and cultural relations.

Right beside you

Because we have over 55 years of experience providing independent legal advice, we understand that property investments, or planning inheritance is not just a complex legal journey but also a personal one.

Our knowledge of Italian and cross border property, family and inheritance law gives us unique insights into the processes involved. We pride ourselves on giving each of our clients the individual care that their case deserves.

Thanks to the dedication of our lawyers, associates and professional staff, we offer an extraordinarily high level of service, responsiveness and attention to detail.

De Tullio Law Firm. Serving clients worldwide

Clients include both individuals and companies seeking legal advice, support and services. Our multi-lingual team serves clients throughout Italy.

Finally …

Thank you for visiting our website. We hope you find the information useful. If there is anything you would like us to cover in an article or, if you would like to discuss a legal matter with us, please get in touch. We look forward to hearing from you.

International Succession

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Foreign nationals with a second home in Italy are subject to international succession procedures

International succession pertains to the estate of a person who dies in a country other than that of their nationality or residence.

It is likewise applicable to someone who leaves movable or immovable assets in a country other than that of their citizenship or residence. If, for example, you are a foreign national who owns a second home in Italy, your estate will be subject to international succession procedures.

In August 2015 new EU regulations governing inheritance came into force. These regulations, known as Brussels IV, aim to simplify and accelerate international inheritance matters and make cross-border succession procedures more efficient. Prior to the introduction of Brussels IV, international succession laws differed from country to country.

Since its introduction, there have now been a number of cases regarding the interpretation of the new EU regulations. One such international succession case came to court in Salerno in 2018.

The case involves two brothers who co-owned three properties in Italy. In 2016 one of the brothers, an Italian citizen, died in New York where he was a resident. He died intestate meaning he didn’t leave a Will.

Get Your FREE Guide to Planning Your Inheritance in Italy

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One of the decedent’s six brothers is a co-owner of the three Italian properties. He took legal action to wind up the Italian property co-ownership. He subsequently filed an inheritance claim for his brother’s share in the property.

Article 24 paragraph 1 of EU Regulation 1215/2012 (so-called “Brussels I bis”) governs dissolutions of co-ownerships. It entrusts such cases to the court of the country in which the property is located. In this case therefore, Italy.

For international succession, to make life simpler for those you leave behind, it is crucial to have a Will

For estate divisions, the court in Salerno applied the Brussels IV regulation.

Article 4 of the regulation establishes that the jurisdiction which rules on the succession as a whole, is that of the country where the deceased was habitually resident at the time of death. However, Article 10 provides for subsidiary jurisdiction of courts in which the estate is located – if the deceased was a national of that country at the time of death.

Returning to the case in question. The court of Salerno considered that the deceased was habitually resident in the State of New York. It therefore ruled that the case should be governed by the law of New York State.

Adding to the complexity of this case, rules of private international law are also relevant. The rules governing New York private international law provide that the law of the place where the property is located applies to successions concerning immovable assets.

The judge has adjourned the case until parties produce U.S. regulatory sources. This is something of a landmark case. It sets a precedent inasmuch that judges have the power and duty to ascertain foreign regulatory sources of their own volition.

Although Regulation 650/12 aspires to harmonise international succession, in terms of effectiveness it is confusing and open to interpretation.

For international succession and division of estates, Italian inheritance law specifically provides for rights to so-called, “forced heirs”. Their inheritance quota is guaranteed.

However, in countries with common law systems, such as the UK and the USA, testators can rule on how estates should be divided.

Brussels IV allows testators to make a choice of law in their Will

Article 22 of Brussels IV allows individuals resident overseas to elect which country law should govern their inheritance.

Where individuals have multiple nationalities, they may elect to have any one of their nationalities apply to their Italian assets.

In effect, this means that you can avoid any jurisdictional confusion after your death. However, you need to take action by making, “Choice of Law Codicil” in your Will.

Finally …

If you are in the process of drafting, or reviewing, your Will, you should consider aspects such as foreign matrimonial regimes, usufruct, tax consequences, joint ownership structures and other foreign proprietary rights before deciding which law to apply to the devolution of your estate.

Should you need further information concerning the topic, our legal professionals will be happy to discuss your situation. Please contact De Tullio Law Firm at the following email address: info@detulliolawfirm.com

 

You may also be interested in Applying A Power of Attorney in Italy

Benefit of Inventory. Accepting An Italian Inheritance

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How to protect your personal assets from debts associated with an Italian inheritance

In this article we explore what acceptance of an Italian inheritance under the benefit of inventory entails.

At De Tullio Law Firm, we understand that when a loved one dies there are many issues that need attention at an extremely difficult time. Having to make funeral arrangements, notifying friends and family and the grieving process.

On top of this, there are also critical legal matters that require consideration.

If your loved one left assets not only at home but also in Italy, estate administration is more complex. As cross border legal specialists in Italy, this is an area in which our legal team can help. Should you wish to discuss your situation with us, please get in touch.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

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Italian estate inheritance options available to heirs

Inheritance consists of assets (moveable and immovable property) and liabilities (debts).

Italian law stipulates that an heir becomes responsible for settling any debts the decedent may have left.

The acceptance of an inheritance sometimes presents a risk. If the value of assets included in the inheritance is less than liabilities, heirs are responsible for settling debts from their personal finances.

In Italy, inheritance always requires acceptance or refusal. Italian law provides three inheritance options in this regard.

Unconditional acceptance of the inheritance

An heir inherits all the assets subject to succession. The beneficiary assumes personal liability for the decedent’s liabilities, even if debts exceed the value of the assets. An heir therefore becomes liable in a personal capacity (with their own finances) for any portion of the decedent’s debts that the inheritance does not cover.

Refusal of the inheritance

This means an heir completely renounces the succession. In effect, an heir renounces all rights to the inheritance. The statutory arrangement is that the share of inheritance is then subject to a ‘right of representation’. Thus it passes to an heir’s children, and if there are no children, to any other heirs.

Acceptance under the benefit of inventory (accettazione con beneficio di inventario)

This is usually the best option if you are uncertain whether the inheritance comprises debts and other succession charges.

What is the acceptance of inheritance under benefit of inventory?

According to Article 490 of the Italian Civil Code, acceptance under the benefit of inventory is an act by which a person declares the acceptance of inheritance but wants to protect personal assets from becoming entwined with those of the deceased.

Usually, the assets of the heir and that of the deceased are merged into one, so not only does the heir inherit movable and immovable assets, but also any debts and liabilities.

Whoever accepts an inheritance must settle debts, so caution is advised. In order to protect an heir’s personal assets, the acceptance of the succession is subject to a condition, the benefit of inventory. This permits the heir to assess what the inheritance actually comprises before deciding whether or not to accept it.

There is no obligation for an heir to accept the inheritance. Drawing up an inventory of debts and assets allows the heir to make an informed decision about the inheritance: either to accept and pay debts from the assets inherited, or to refuse the inheritance because debts outweigh inherited assets.

Effects of acceptance under benefit of inventory

The first advantage is that the estate of the deceased remains distinct from the estate of the heir. In essence, this means that an heir does not have pay the decedent’s debts for a value greater than that of the inherited assets. In addition, creditors cannot recoup any debts from the heir’s personal assets.

How to accept the inheritance under the benefit of inventory

To accept an inheritance using the benefit of inventory, there are some fundamental requirements. Article 490 of the Italian Civil Code covers the procedure.

Firstly an heir has to file a declaration written in Italian, with a notary or a clerk of court in the locality where the succession procedure is taking place. Secondly, a detailed inventory of all the assets belonging to the inheritance is necessary.

Within a month of filing the above mentioned declaration, the notary or clerk must transcribe it in the relevant land registries. This transcription then permits the heir to pay the creditors and the bequests.

Finally …

If you are in the difficult situation of considering whether to refuse or accept an Italian inheritance, using the option of benefit of inventory may be the way forward for you.

You may also be interested in Inheritance Law and Taxes

Title deed and deed of sale. Change of Names.

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Registering names on a title deed in Italy

The final step of the Italian conveyancing process is signing of the deed of sale. In effect, the title deed in Italy transfers ownership of real estate into someone’s name.

This legal procedure demands the presence of a notary public, the real estate vendor(s) and buyer(s) and two witnesses.

The notary reads aloud the entire deed, which is written in Italian. All parties, including the witnesses and the notary public, then approve and sign the title deed.

If one of the parties to the transaction is not fluent in the Italian language, Italian law requires the presence of a qualified professional to translate and interpret the title deed. This could be a translator or a bilingual property lawyer. This legal requirement aims to ensure that all parties fully understand the content and ramifications of the deed. The professional acting as translator must also sign the title deed.

Once the notary has signed-off on the deed, the buyer acquires ownership of the real estate.

Subsequently, the notary is responsible for certain formalities. Because notaries work for the Italian State, registering the deed with the tax authorities is the first step. Next the notary lodges the deed in the Public Registers. This allows any third parties who may have an interest to know about the change of ownership. Lastly, the notary informs the land registry so they can update their records accordingly.

How do you change the name on an Italian property / title deed?

There are many reasons why you may need to change the name on a title deed in Italy. Divorce and death are the most common reasons.

In order to change the name on a title deed, you will require a new notarial deed.

For example, if you acquired a property with a spouse and following a divorce you need to remove one of the names from a real property title deed, you will need a new notarial deed.

Where the divorce decree is from an Italian Court, the transfer of ownership will not involve payment of any real estate transfer tax.

If on the other hand, the divorce decree is issued by a non-Italian Court, you will have to pay real estate transfer tax.

The terms of the new title deed determine applicable tax rates. It will depend whether the real property changed hands without any payment or if there was a financial transaction involved. In the latter case, you will need a new deed of sale.

How do you find out whose name is on a title deed in Italy?

In order to find out whose name appears on a title deed, you will need to conduct mortgage and cadastral searches.

Finally …

For more information and clarification on title and sale deeds in Italy, please do not hesitate to contact us. We are here to help you.

You may also like to read: Translating legal documents in Property Transactions

Making An Italian Will. Information And Template

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A will determines distribution of your assets

By making an Italian will, you can decide how to divide your estate after your death. In addition, it allows you to be certain that your heirs don’t pay more Inheritance Tax than necessary.

What is an Italian Will?

A will is a legal document. The will writer, known as the testator, establishes in written form, how to distribute their estate after death (article 587 of Italian Civil Code).

Anyone over the age of 18, who is not legally incapacitated, can write an Italian will. Incapacity is defined by Italian Civil Code.

Italian law states that a will is revocable at any time. Testators’ rights to dispose of their assets is protected until their last breath.

The content of an Italian will is essentially patrimonial. That is to say, it deals with the distribution of a testator’s inheritable assets. However, the law states that testators can also make dispositions of a non-pecuniary nature in a will. For example, the recognition of a natural child.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

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Why is having an Italian will important?

In order to understand how Italian inheritance law works, you may like to read our comprehensive guide on this subject.

If you own assets such as property in Italy, you should not underestimate the  importance of a will in Italian.

The laws governing forced heirship are very strict in Italy. Because of this, anyone wishing to derogate from these rules should seek legal advice in order to ensure their plans comply with Italian and European succession rules.

Not only does a will enable a testator to assign assets to beneficiaries, it can also be useful in preventing conflict among heirs. In certain cases, it can also permit a reduction in inheritance tax payments.

Because it makes life easier for those you leave behind, if you own property in Italy, we would advise that you make an Italian will.

How do you make an Italian will?

An Italian will must be in Italian. For an Italian will to be legally valid,  a testator must hand write, sign and date the document.

For straightforward cases, testators can use a very simple will format with wording such as this:

Io sottoscritto/a, …………………. (indicare cognome, nome, luogo e data di nascita, residenza) revoca tutte le mie precedenti disposizioni testamentarie. Dispongo del mio patrimonio al momento della mia morte come segue.

Nomino erede universale di tutti i miei beni terreni …………. (indicare cognome, nome ed eventuali rapporti di parentela. Se non si tratta di un parente, indicare anche luogo e data di nascita).

Cedo a ………… (indicare cognome, nome ed eventuale parentela, se non è un parente è opportuno indicare luogo e data di nascita) i seguenti beni: …………………….. (specificare chiaramente i beni).

Data

Firma

I, the undersigned, …………………. (indicate surname, name, place and date of birth, residence) herewith revoke all my previous testamentary dispositions. I dispose of my patrimony at the time of my death as follows.

I appoint as universal heir of all my worldly goods …………. (indicate surname, name and any relationship of kinship. If it is not a relative, you should also indicate place and date of birth).

I give to ………… (indicate surname, name and any relationship, if it is not a relative, it is appropriate to indicate place and date of birth) the following assets: …………………….. (clearly specify the assets).

Date

Signature

Finally …

Even if you think your situation is straightforward, it may not be. If you own property in Italy and elsewhere, this adds a layer of complexity. It will require cross border legal expertise. We therefore recommend that you seek independent legal advice regarding your personal circumstances.

At De Tullio Law Firm, we have over 55 years of experience managing cross border and Italian inheritance matters throughout Italy. We are a member of STEP, the world’s leading professional association for trust and estate practitioners.

If you would like to discuss your estate plan with us or if you are considering making an Italian will, please get in touch at: info@detulliolawfirm.com

 

You may also be interested in Do beneficiaries have to pay taxes on inheritance?

Legitimate Heirs. Rights of “Forced Heirs” in Italian Inheritance

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Italian law provides for legitimate heirs

Although a testator may have expressed wishes in a will, certain people have a legal right to receive at least a portion of an Italian inheritance. These are all so-called, “legitimate heirs”, or “forced heirs”.

The testator only has one portion of assets to dispose of freely, which varies between a quarter and a half of total assets. This is defined as the, “available quota”.

The remainder of an Italian inheritance is legally designated. This portion goes to a testator’s spouse (or registered partner), children and, in the absence of children, if they are still alive, the testator’s parents.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

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Legitimate Heirs: what are inheritance quota rights?

If there is only one child, s/he is due at least half of the decedent’s total assets. This becomes a third of assets if the decedent’s spouse or registered partner is still alive. A child would therefore be entitled to inherit a third of the assets.

In the case where there are two or more children, they divide two thirds of the inheritance between them. A surviving spouse or registered partner is entitled to a quarter of the assets, children’s quota decreases to half of the assets. If one or more children pre-decease the testator or renounce an inheritance, their descendants qualify to receive that entitlement.

Where the decedent and surviving spouse or registered partner have no children, the surviving partner is entitled to at least half of the assets.

Parents and other ascendants of the deceased only become legitimate heirs in the absence of descendants. Parents have the right to a third of the inheritance, reduced to a quarter if the decedent’s spouse or registered partner is still alive. The latter is legally entitled to half of the assets.

Regarding property pre-owned by the deceased or owned in common by the spouses or registered partners. The surviving spouse or registered partner has the right to (i) remain in the family house and, (ii) retain all movable assets in the property. In this case, if there are any other co-heirs, there is no requirement to pay estate tax on their portion of inheritance. Tax liabilities remain with the spouse or registered partner, even if s/he renounces the inheritance. 

What about the inheritance rights of separated couples?

In cases of a legal separation, the spouse or registered partner loses inheritance rights if a court judgement finds s/he was to blame for the breakdown of the marriage or registered partnership.

Surviving spouses or registered partners who have no court judgement regarding their separation are not legally separated. They therefore have the same inheritance rights as a non-separated spouses and partners. This would also be the case where no assignment of responsibility for the breakdown of the marriage or registered partnership exists.

In other words, the loss of the right to an inheritance relates only to court-issued judgements of separation. The law, in accordance with article 151 of Italian Civil Code, deems a couple to still be in the marriage or registered partnership if their separation was a personal decision and did not go through the courts.

Legitimate heirs and reserved quotas in Italy

Legitimate heirs Reserved quotas and availability
Spouse (or registered partnership) (in the absence of children and parents) 1/2 to the spouse (or registered partner) = 1/2 available quota
One child (in the absence of a spouse or registered partnership) 1/2 to the child = 1/2 available quota
Two or more children (in the absence of a spouse or registered partnership)  2/3 to children (divided into equal parts) = 1/3 available quota
Spouse (or registered partnership) and only one child 1/3 to the spouse (or registered partnership) 1/3 to the child = 1/3 available quota
Spouse (or registered partnership) and two or more children 1/4 to the spouse (or registered partnership)  1/2 to children (divided in equal parts) = 1/4 available quota
Spouse (or registered partnership) and parents (in the absence of children)  1/2 to the spouse (or registered partnership)  1/4 to parents (divided into equal parts) = 1/4 available quota
Parents (in the absence of children and spouse or registered partnership)  1/3 (divided into equal parts) = 2/3 available quota
If there is a will, the law reserves a quota of inheritance only for the spouse (or registered partner) and children (if the deceased had no children there is a reserved quota for parents who are still living), so if the will is valid, other relatives cannot make claims.  

 

Finally …

Italian inheritance is a complex matter. In addition, if you own assets in more than one country, this can further compound the complexity. We recommend you seek independent legal advice regarding your personal situation. If we can be of assistance, please get in touch.

For more information about Italian succession and inheritance, you may find our Italian Succession Guide useful.

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. We are a full member of STEP, the world’s leading association for trust and estate practitioners.

 

Italian Inheritance Services

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Your specialists for Italian inheritance services 

For over 55 years, De Tullio Law Firm​ has been providing clients worldwide with clear-sighted Italian inheritance law services.

Roman law

Because Italian succession law is based on the principles of Roman Law, it provides some protection to close members of the family. This therefore partially limits the right of the testator to dispose of his/her own assets.

Testamentary Succession is defined as the assignment of hereditary assets in compliance with the wishes of the testator as set out in an Italian Will. Whereas, in the absence of a Will, inheritance is devolved following the principles of Legal Succession. In other words, where there is no will, succession law gives rights to a number of legitimate heirs. This means that certain heirs have the legal right to inherit a portion of the deceased’s estate.

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Known as legitimate, reserved or forced heirs, these beneficiaries are the spouse or registered partner of the deceased. Thereafter, beneficiaries include relatives identified by law as those closest to the deceased. For instance, children, parents and relatives up to the 6th degree of connection.

Italian succession law reserves a significant quota of inheritance for these beneficiaries. Because they are defined as forced heirs, it means that a testator cannot exclude them from inheriting, even with a Will.

However, when drafting an Italian will, the testator is free to dispose of a part of his assets known as the, “disposable quota”. This allows the testator to assign part of their assets to non‐relatives or organisations such as charities.

Our Italian inheritance law services

– Italian inheritance rights assessment

– Drafting Italian Wills

– Claiming / recovering inherited Italian property

– Italian property, titles, records searches

– Legal support for the sale of inherited Italian properties

– Obtaining appraisal and or a survey of inherited Italian property

– Determining Italian inheritance tax

– Obtaining copies of public Wills

– Challenging Wills drafted in conflict with the Italian legislation

– Managing Italian probate

– Registering inherited property in the name of heirs

– Obtaining release of inherited funds deposited in Italian banks

Read more about our Inheritance Services.

Finally …

If the deceased was resident in Italy at the time of death, Italian Inheritance Tax applies to the deceased’s worldwide assets. However, if the deceased lived outside Italy, Italian estate tax is only payable on assets located in Italy.

If you own assets in Italy, we recommend that you draft an Italian Will. And, if you need help with Italian estate planning, we can support you.

At De Tullio Law Firm, we have over 55 years of expertise with managing cross border succession and estate planning matters throughout Italy. We offer a full range of Italian inheritance law services. In addition, our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

For additional information about Italian succession and inheritance, you may find our Italian Succession Guide useful.

If we can be of assistance, please get in touch at: info@detulliolawfirm.com

 

You may also be interested in our inheritance videos.