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.
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.|
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.