Italian Forced Heirship Rules (Successione Legittima)
Italian forced heirship, governed by the Civil Code (Articles 536ā564), restricts the freedom for an individual to decide where their assets should go on death.Ā The rules work by reserving a portion (quota legittima) for “forced heirs” (the “legittimari” – spouse, children, or ascendants if there are no children).
These rules apply to Italian residents and non-residents with Italian assets, unless a choice of law (professio iuris) under EU Regulation 650/2012 or other regulations permits the individual to choose to apply the individual’s national foreign law. Foreign law may be applied by the making of choice in this sense, but only to the extent the Foreign Law permits freedom in choosing heirs and legacies to them.
The Forced or Legitimate Heirs/Legittimari
The table below shows shows the relevant shares in the estate of a deceased person to which a Forced Heir is entitled under the Italian Civil Code and the part of the estateĀ – the freely devolvable or “Disposable Share” that an individual can make use to leave bequests in their will to people other than the Forced Heirs.
Forced heirs can challenge wills or indeed other arrangements, such as lifetime gifts, that infringe on their legitimate shares, via court action.
Note that Italian Forced Heirship Rules cannot be excluded in a will or by way of other action.Ā If they are, the terms of the attempt to overrule the Forced Heirship rules will not be valid as regards a “disinherited” forced heir who always retains their right to their Legitimate Share under Italian law.Ā
By the same token a will or other arrangements which distribute the estate otherwise than in accordance with the Forced Heirships, will be perfectly effective as long as none of the Legitimate Heirs contest, insisting of the their lawful portion.Ā
| Heirs present | Forced share(s) | Disposable share |
|---|---|---|
| Spouse only | Ā½ to spouse | Ā½ |
| 1 child only | Ā½ to child | Ā½ |
| 2+ children | ā to children (in equal parts) | ā |
| Spouse + 1 child | ā to spouse + ā to child | ā |
| Spouse + 2+ children | Ā¼ to spouse + Ā½ to children (in equal parts) | Ā¼ |
| Spouse + parents (no children) | Ā½ to spouse + Ā¼ to parents | Ā¼ |
| Parents only (no spouse, no children) | Ā½ to parents | Ā½ |
| Grandchildren do not have their own independent right as legittimari (forced heirs) while their parent is alive. However, they step into their parentās place if that parent (the child of the deceased) has already predeceased the grandparent. | ||
Intestate Succession
The Italian Forced Heirship rules described above operate only to give Legitimate Heirs a legal right to a specific share of the share of the deceased’s estate
Separate rules apply where someone dies where there is no valid will, or where part of the estate is not disposed of by a will (an Intestate Succession).Ā Ā Here the fundamental principles are contained Articles 565ā586 of the Italian Civil Code.
In examining the position of a succession under Italian law it is important to keep the Forced Heirship and Intestate Succession rules separate as two distinct issues. Of course they are interconnected but an understanding of the Italian starts with separating the two concepts. This means we can usefully create a separate table for the rules on Intestate Succession as below.
| Scenario | Distribution |
|---|---|
| Only spouse | Entire estate to the spouse. |
| Spouse + 1 child | Ā½ to spouse; Ā½ to the child. |
| Spouse + 2+ children | ā to spouse; ā to children in equal parts. |
| Children only (no spouse) | Entire estate to children in equal parts. Grandchildren inherit by representation if a child predeceased. |
| Spouse + parents and/or siblings (no descendants) | ā to spouse; ā shared among parents and siblings. |
| Parents only (no spouse, no descendants) | Entire estate to surviving parent(s) in equal parts. |
| Parents + siblings (no spouse, no descendants) | Ā½ to parents; Ā½ to siblings in equal parts. Nieces/nephews inherit by representation. |
| Siblings only (no spouse, no descendants, no parents) | Entire estate to siblings in equal parts. Representation applies for nieces/nephews. |
| No spouse/descendants/parents/siblings | Ascendants (e.g., grandparents) inherit before collateral relatives. Failing that, collateral relatives up to 6th degree share equally by degree. |
| No heirs up to 6th degree and no spouse | The estate devolves to the Italian State (no personal liability beyond assets). |
| The surviving spouse also retains rights of habitation over the family home and use of household furniture (art. 540(2) c.c.), even in intestacy. | |
Intestate Succession
The Italian Forced Heirship rules described above operate only to give Legitimate Heirs a legal right to a specific share of the share of the deceased’s estate
Separate rules apply where someone dies where there is no valid will, or where part of the estate is not disposed of by a will (and Intestate Succession). Here the fundamental principles are contained Articles 565ā586 of the Italian Civil Code.
In examining the position of a succession under Italian law it is important to keep the Forced Heirship and Intestate Succession rules separate as two distinct issues. Of course they are interconnected but an understanding of the Italian starts with separating the two concepts. This means we can usefully create a separate table for the rules on Intestate Succession as below.
The Degree of Kinship
The Degree of Kinship relationship between other family members is important.Ā This page contains a table.
Conclusion
If you are going to be tax resident at the time of your death there are a number of useful things to do to prepare
Consider the impact of Forced Heirship Rules, especially if you have a spouse or civil partner and children, accepting that while you can make a will to override the Forced Heirship rules, if you exclude your wife and/or any child (or grandchild, if one of your children dies before you), then the terms of your will be subject to challenge.Ā Ā
The standard approach in many “Anglo Saxon” countries is to leave the entire estate to the surviving spouse or civil partner. this approach is liable to challenge by any child and may be inefficient if it means that the survivingĀ spouse’sĀ estate will exceed Italian inheritance tax thresholds on their death due to a “bunching” effect.Ā
If you are national of another country apart from Italy able, you may be able to prepare a will under the laws of your nationality and hope that it can be relied upon to ensure that the terms of the will will override ItalianĀ forced heirship rules in case of divergence rules.Ā
If your want your estate to go to your spouse and children then making a will may not be required at all – Italian law will handle everything automatically.Ā But if you have property outsideĀ Italy or wish to diverge from the Italian rules for any reason then making a will be worthwhile.
In the context of foreign property separate willsĀ for each jurisdiction may be worthwhile with a view to easing the probate/succession procedures on death.Ā Note that this should not be used a ruse to fail to report foreign (non Italian) assets for Italian IHT purposes.
If you do wish to “disinherit” a spouse or child by indicating legacies in your will which diverge from the forced heirship rules then techniques exist, all of which, however, may give to dispute through the courts, and which may require a significant investment in professional advice.Ā Ā