Italian Inheritance Law
By: De Tullio Law Firm | Posted: 26th October 2012
Italian inheritance law Regulation
The law n.218 dated 31st of May 1995 regulates the field of inheritance law in the private international law.
The succession rules are applied on the basis of the national law of the deceased at the moment of death.
The Italian legal system adopts the principle of “unity of inheritance”. This principle differs substantially from the common law one. It is based on the difference between property and non-property assets: the law of the last domicile/ citizenship of the deceased party is applicable to non-property assets , while the so called “lex rei sitae” (law of the country where the property is located) is applied to property assets. Therefore if the hereditary assets includes properties located in different countries, the succession rights to each single property will be regulated by the law of the country in which each property is located.
The Italian rules on conflict of laws regulate the case in which the national law of a non Italian deceased might be different from the law of another country. Such deferment is effective only if the law of the third State accepts the deferment. Here is a practical example: if a British citizen dies leaving some properties in Italy, the succession rights will be regulated by British law. However, following the British rules on “conflict of laws”, the law applicable to such properties will be the “lex rei sitae (law of the country where the property is located), which is accordingly the Italian law.
The testator is always entitled to determine that his/her estate and the system of succession is to be ruled according to the law of the country where he/she resides. Such choice has to be formally expressed in a Will and should not be inconsistent with the rights that the Italian law provides for the so called “legittimari” ( members of the family who have the right to receive a fixed part of the property of the deceased irrespective of contrary provisions in the Will) who are resident in Italy at the time of death.
It is extremely desirable to have an Italian will drafted, and an Italian lawyer expert in the field is a good choice. In that way it is possible to prevent the consequences deriving from an intestacy, also known as a “legal succession”, since in that case the Italian law determines which relatives of the deceased have a right to succeed. In case of a lack of potential eligible heirs, Italian law states that the hereditary assets located in Italy will be transferred to the Italian State.
Basic principles of Italian inheritance law
Italian inheritance law dates back in the Roman Law tradition. It is based on the principle that close family members of the deceased merit special protection, partially limiting the right of the testator to dispose of his/her own assets entirely as he/she wishes.
“Testamentary succession” can be defined as the assignment of the hereditary assets (“estate”) of a deceased testator in compliance with the decisions of the testator as set out in an Italian Will.
In the absence of a Will, (intestate succession) the estate devolves following the principles known as “legal succession”; in other words the Italian Civil Code specifies a number of individuals (legitimate heirs) who take over the assets of the deceased. Such heirs are the spouse of the deceased and certain classes of relatives identified by law, starting from the closer ones until the 6th degree of connection. In simple terms, the Italian legislature, (in the absence of a Will), has decided to legally prefer the interests of family members rather than those of other parties. In the absence of relatives within the 6th degree of connection the estate devolves to the Italian State.
The principles of testamentary succession and legal succession overlap with the principle of “necessary succession”.
The Civil Code reserves to very close relatives (spouse, ascendants and descendents defined as “forced heirs”) a significant portion of the estate that the testator cannot prejudice or circumvent by the provisions of his/her Will. The legislature has therefore decided to strike a balance between complete testamentary freedom and the moral necessity of protecting close family members from the possibility of being excluded completely from their prospects of inheritance.
When drafting his/her Italian Will the testator is free to dispose of part of his assets defined as the “disposable quota” (in contrast with the “reserved quota” assigned to the close relatives). In short, the wishes of a testator to leave his assets to strangers is accepted by the law, but it is partially restricted. Further, an Italian Will infringing the rights of the “forced heirs” is not necessarily invalid from the outset, as it is fully enforceable unless and until challenged in Court by the disadvantaged “forced heirs” through a legal action called “abatement of the inheritance”.This article is copyright
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Tags: principle, common law, italy, unity, testator, members of the family, citizenship, domicile