Italy is a civil law country and title to property succeeds from one generation to the next according to the provisions of the Civil Code. Property may pass by the laws of “headed” succession (without a will), or by will or other testamentary instrument.
Forced heirship is an aspect quite specific to Italian Law, insofar as it poses stringent limitations to the freedom of a person to dispose of its assets post mortem, and to some extent also in his/her lifetime. Below we will consider its main provisions and practical examples.
Under the Italian Civil Code, when a person dies, several persons named by the law—the so called “called to inheritance,” which is the literal translation of “chiamati all’eredità”—are entitled to become heirs and entitled to the estate of the deceased.
In order to become heirs, persons “called to inheritance” (chiamati all’eredità) are required to accept the inheritance,1 unless they are declared “unworthy to succeed” 2 by an Italian Court following a claim made by another heir or any interested person.
Under Italian law, the spouse, the children born in and out of marriage and the ascendants of the deceased are defined “forced” heirs (so-called “legittimari”) as they are mandatorily entitled to receive a predetermined share of the deceased’s estate, which is called the reserved portion.3
The total amount of the reserved portion, to be shared amongst the forced heirs (legittimari), is calculated in the following manner. The debts of the deceased must be deducted from his or her estate, whilst the properties disposed of by gift by the deceased during the lifetime – without any time limit – must be fictitiously added, according to their value determined by the rules set out under articles 746 to 751 of the Italian Civil Code (the so-called collazione).4
Therefore, collazione of immovable property is done either by restoring the property in kind to the estate or, by ascribing the value of the immovable at the time the succession is opened to the donee’s share.
Collazione of movable property is done only by ascribing to the donee’s share the value of the asset received by gift at the time the succession is open: that is, the value of the property at the date of death, not the date of the gift.
However, the donor may expressly exempt the donation from collazione (the so-called dispensa dalla collazione) if the disposition of assets represented by such donation does not exceed the share the deceased could have freely disposed of. The exemption can be either explicit or implicit.
Under the forced heirship regulation, donation includes any contract or act (including the transfer of properties to trustees under the Hague Convention) that a forced heir directly or indirectly benefits from. However, the expenses for maintenance, education and illnesses 5 as well as the donations of small value received by the spouse 6 shall not be counted to such effects.
For example, if the value of the estate of the deceased is one million Euros, debts are 500.000 Euros and the value of the donations made during his lifetime is 300.000 Euros, the total amount of the reserved portion is 800.000 Euros (=1.000.000-500.000+300.000).
Based on this total amount, the share to be transferred to each forced heir is calculated in accordance with the provisions of the Italian Civil Code, as follows:
- If the deceased is married and has no children, his or her surviving spouse is entitled to one-half of the deceased’s estate. It means that the testator may freely dispose of the other one-half during his lifetime or on his or her death. In addition to the reserved portion, the spouse is entitled to live in the house where the family resides and to use all the furniture in the home for life.
- If the deceased leaves only one child and no surviving spouse, the child is entitled to one-half of the estate. However, when two or more children survive, they are entitled to two-thirds of the estate, which must be divided equally amongst them.
- The amounts of the reserved portions described above are reduced in case of surviving spouse and children. In the event the deceased leaves a spouse and one child, they both have right to one third each of the estate. Therefore, the testator may freely dispose of one-third only of the estate during his or her lifetime or on his or her death.
- However, if the deceased leaves a spouse and two or more children, by law one-fourth of his or her estate is for the spouse and one-half is to be equally shared amongst the children. In this case, the testator may have validly disposed of one-fourth of his or her estate during his or her lifetime or on his or her death to other beneficiaries.
- If the deceased does not leave any descendants, his or her ascendants are mandatorily entitled to: (i) one-fourth of his or her estate, the surviving spouse being entitled to one-half; or (ii) to one-third of the estate of the deceased in case of no surviving spouse.
In case the estate of the deceased includes any specified assets, such as immovable, the value to be considered for the above-mentioned purposes is the value of the asset at the death of the deceased, which may be determined by an expert.
In order to restore the reserved portion, the Court may order that the asset received by the involved heir, the legatee, or the done, be divided between the transferee of the asset and the prejudiced heir.
In case the asset cannot be conveniently divided, it must be assessed if the legatee or donee has an interest in the asset in excess of one-fourth of the disposable portion. In this case, the asset must be left in the inheritance, subject to the right of the legatee or donee to receive the value of the disposable portion.
In case the legatee or donee has an interest in the asset not greater than one-fourth of the disposable portion, he or she may retain the asset but he or she is obliged to a monetary compensation in favour of the forced heir to restore its reserved portion (See article 560 of the Italian Civil Code).
If the legatee or donee is a forced heir he or she may retain the asset, provided that its value does not exceed the total of the disposable portion of his or her reserved portion.
Should the reserved portion be prejudiced by any dispositions of the testator, the forced heir may claim for re-apportionment according to the following mandatory rules. First, against the will’s dispositions under which the testator has appointed an heir or a legatee; and second, against the donations made during the testator’s lifetime, starting from the most recent to the oldest dates.7
To restore the reserved portion, the Court may order: (i) the restitution of the object received by the involved heir, the legatee or the donee; or (ii) monetary compensation from the claimant.
In the light of the reserved portion protection described above, forced heirs cannot be disowned by the testator, nor excluded from the inheritance, nor may any donation the testator may have made, legacy or other legal device prejudice their portion.
This principle entails that any forced heir disowned or excluded from the inheritance may challenge in Court the clause of exclusion provided for by a will or any disposition of assets which prejudices his or her reserved portion.
- As explained fully below, the rights of the heirs differ according to whether or not the decedent left a will, in that Italy limits the right of a testator to give his assets to anyone other than his spouse and descendants by his Will.[↩]
- See article 463 of the Italian Civil Code.[↩]
- See article 536 of the Italian Civil Code.[↩]
- See article 737 of the Italian Civil Code.[↩]
- See article 742 of the Italian Civil Code.[↩]
- See article 738 of the Italian Civil Code.[↩]
- See article 559 of the Italian Civil Code.[↩]