The Italian law does not always allow us to freely decide on the destination of our inheritance after death…
Regardless of wishes expressed in a Will, some subjects have a legal right to receive at least a portion of the inheritance. The testator only has one quota of his assets to dispose of freely, which varies between a quarter and a half of total assets. This is defined as, “available quota”. The remainder of the inheritance is legally designated for the spouse (or registered partner), the children and, in the absence of children, if they are still alive, the testator’s parents. These are all so-called, ”legitimate heirs”, or “forced heirs”.
If there is only one child, he/she 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, so a child would thus be entitled to inherit a third of the assets. If there are two or more children, they divide two thirds of the inheritance between them. This is reduced to half of the assets if the decedent’s spouse or registered partner is still alive because they would be entitled to a quarter of the assets. If the decedent and spouse or registered partner had no children, they would be entitled to at least half of the assets. Even in the case of a legitimate succession, if one or more children of the decedent pre-decease the testator or renounce an inheritance, their descendants qualify to receive that entitlement.
Parents and other ascendants of the deceased only become legitimate heirs in the absence of descendants. If they are alone, 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.
The spouse or registered partner of the deceased, with respect to the property pre-owned by the deceased person or in common by the spouses, has the right to (i) remain in the family house, and (ii) retain the movable assets that furnish it. In this case, the other coheirs (if any) are not required to pay property tax (IMU tax Imposta Municipale Propria) for the share they inherit.
Such rights remain upon the spouse, even if he/she renounces the inheritance.
The spouse or registered partner loses inheritance rights if a court judgement has found he/she was to blame for the breakdown of the marriage or registered partnership. On the other hand, the spouse who is not legally separated, i.e. there is no court-issued judgement, or who is not responsible for the breakdown of the marriage or registered partnership, has the same inheritance rights as a non-separated spouse.
The loss of inheritance rights is therefore not related to personal separation, but to a court-issued judgement of separation in accordance with article 151 of Italian Civil Code pertaining to marriage.
Forced heirs and the available quota
|Legittimate heirs||Inheritance quotas reserved and available|
|Spouse (or registered partnership) (in the absence of children and parents)||1/2 to the spouse (or registered partnership) 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 in equal parts) 1/3 available quota|
|Spouse (or registered partnership) and only onechild||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 spous (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|
|When there is a Will, the law reserves a quota of inheritance only to the spouse (or registered partner) and the children (if the deceased had no children there is a reserved a quota for parents who are still living), so if the Will is valid other relatives cannot make claims.|
For additional information about Italian succession and inheritance, you may find our Italian Succession Guide of interest.
Italian will and estate lawyers can help you with the Italian inheritance process
The Italian inheritance process can be a complex process
If you have been named as a beneficiary of assets in Italy, and you have decided to accept your Italian inheritance, it is a good idea to use a specialist Italian Inheritance lawyer to help support you. The Italian inheritance process can be a complex process, so obtaining the right legal advice and having the right lawyer on your side will be massively beneficial in helping you get through it. Especially if you are not resident in Italy. This article looks at some of the reasons why you should engage legal services. Read more
Should the heirs, appointed by the Will or by law, be two or more, a condition of joint ownership of rights and duties concerning the inheritance is established among them. The assets and the real rights of the deceased compose the estate: the co-heirs take part in the estate in proportion to their inheritance quota, and, in the same proportion, they acquire all the credits and take over all the debts of the deceased.
Partition of the estate
The partition of the estate is aimed to cease the status of communion of assets on the estate among all those entitled (parties who take part in the communion). It is to be noted that every co-heir has the right to ask at all times for the partition of the common property, except as otherwise established by the testator. Furthermore, it is compulsory that all the co-heirs or their universal or special successors (legatees) must take part in the partition. The absence of some of the entitled will entail the invalidity of the partition transaction, which cannot be rectified with the following joining by the missing co-heirs.
According to the Italian national legislation, the partition of the estate can be executed by means of three methods:
- Amicable (bargaining) partition
- Judicial partition
- Testamentary partition
The amicable partition is a contract of which the purpose is to convert the co-heirs’ rights on ideal quotas (known as legitimate quotas) of the estate into rights on single assets forming part of the same, so that the value of the assets individually assigned (known as de facto quotas) equals the value of the joint ownership quotas.
Should the co-heirs disagree on the opportunity or the way to execute the partition, each of them can request it to the judicial authority. The partition will be executed by means of the following stages:
- Formation of the inherited estate, including the assets which have been gifted to the co-heirs by the deceased
- Appraisal of the assets, according to their market value. The testator, however, can identify a person for the execution of the appraisal. If assets of the same category are divided, the estimate is not needed. In the other cases, the estimate of the single dividend assets is essential in order to create portions of value corresponding to the quota
- Possible sale of indivisible assets: Before creating the portion, it may be necessary to sell the real estate units non-divisible to one-third, or to assign them to a co-owner in return for a corresponding amount of money to be shared among the co-heirs.
- Formation of the portions due to every heir, which are as many as the co-owners in proportion to the respective quotas.
- Hotchpot: consisting in the fact that those who obtain the inheritance have to confer to the inheritance estate all the assets which have been gifted to them when the deceased was alive, in order to share them with the other co–heirs, so as to prevent an unequal treatment among the co-heirs.
- Assignment or attribution of the portions. The assignment occurs when the portions are equal, by drawing lots, while the attribution occurs when the portions are not equal.
Even without indicating the quotas, the testator can create the portions to assign to each co-heir, or he/she can simply lay down the rules in order to create them; in such case, an amicable or judicial partition will take place all the same, in which the rules laid down by the testator will be binding, unless the effective value of the assets does not correspond to the quotas established by him/her.
Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.