Compulsory portion under Italian inheritance law

Applicability of the Italian law on compulsory portions

The compulsory portion is regulated in the Italian Civil Code (codice civile) – CC for short.

Whether Italian law is applicable for inheritance cases from 17.08.2015 is primarily determined by the European Succession Regulation (EuErbVO).

Nature of the Italian compulsory portion: Noterbrecht

Under Italian inheritance law, testamentary freedom is restricted in favor of certain persons. This is also referred to in German literature as “Noterbrecht”. According to this diction, the person entitled to a compulsory portion is the noterbe heir and his or her share of the estate is the noterbe portion.

The children and their descendants, the spouse and the deceased’s ancestors are the heirs.

Compulsory portion/death right of children and descendants

Living children exclude their respective descendants. If a child has died before the testator and leaves descendants, they take the place of the child. If a child is unworthy of inheritance or has been effectively deprived of his or her share of the inheritance, he or she is not counted. However, if the child had descendants themselves, they are entitled to their share of the no-par heir and are therefore included in the count.

Noterbteil

If the testator leaves only one descendant, this descendant receives a no-par value share equal to half of the estate. However, if more than one descendant is alive, they receive a total of two thirds of the estate, which is divided equally according to the number of descendants. If a descendant inherits alongside the deceased’s spouse, the latter receives one third of the estate. If the deceased leaves several descendants in addition to the spouse, they each receive half of the estate in equal shares

Noterbteil of the ancestors

If the testator is not survived by his or her descendants, his or her parents and other ancestors are no-heirs. The ancestors receive a total of one third of the estate, which in turn is divided equally between them. If ancestors inherit alongside the spouse, they are entitled to a total of one quarter of the estate, which is divided between them.

Spouse’s share of inheritance and other rights in the event of inheritance

The spouse is entitled to at least half of the legal estate, regardless of the number or relationship of the deceased’s other heirs. The spouse also receives a usufructuary right to the joint real estate in addition to the right to use the household effects.

Judicial enforcement of the Italian compulsory portion

Whether Italian or German courts have jurisdiction is generally determined by the habitual residence at the time of the deceased’s death.

If Italian courts have jurisdiction and an action is brought there, the procedure is governed by the Italian Code of Civil Procedure.

Att. Prof.* Dr. Stephan J. Lang