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 are often enormous. On top of this, there are usually complicated legal and financial issues with short and long term implications that need to be carefully thought through and managed.
In the course of making the decision to separate and/or divorce, it is important to consider aspects related to inheritance. Italian inheritance law specifically provides for rights belonging to so-called, “forced heirs”, whose quota must be guaranteed. 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 so it is worth seeking some professional advice at an early stage.
Separation and divorce is a family crisis, yet it is crucial to have a clear understanding of how to protect property, movable and immovable assets and savings, in order to guarantee fair protection of children’s inheritance.
Indeed, children have the right to be maintained by both parents as stated in the Italian Constitution and Article 147 of the Italian Civil Code until they reach the age of majority (18 years old). Moreover, in May 2015 Italy introduced the so-called ‘quickie divorce’ law, which cut the amount of time it takes to get a divorce from three years to as little as six months.
Matrimonial regimes and examination of notarial deeds
With separation and/or divorce, there can be important consequences on estate-related issues, which can vary according to the matrimonial financial regime chosen at the time of, or during, the marriage: couples in Italy may choose between a matrimonial regime of shared ownership, comunione dei beni, or separate ownership, separazione dei beni, of their worldly goods in the event of divorce or death.
Unless otherwise stipulated in an agreement, which can be made at the start of a marriage or at any time during a marriage, comunione dei beni is regarded as the default matrimonial regime. Expat couples married elsewhere but resident in Italy are regarded as being married according to this regime. In the regime of comunione dei beni, property acquired by the couple during their marriage, whether individually or together, forms part of the couples’ shared ownership. In the event of a divorce, these assets will be split 50/50.
However, there are exceptions: property acquired by a partner prior to the marriage, or property acquired after the marriage, as a gift or an inheritance would not necessarily be split in the case of a divorce.
Therefore, it is always important to examine the notarial deed of a purchased property/asset in order to understand the related matrimonial regime and subsequent consequences in case of separation and/or divorce.
If you need more information on the topic, please get in touch.