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.
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For over 50 years, De Tullio Law Firm has been providing, clients worldwide, with clear-sighted legal advice related to Italian inheritance matters.
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