Legal succession in Italy

Legal regulation

The legal succession (successione legittima) is regulated in Art. 457- 809 of the Italian Civil Code (codice civile) – CC for short.

The applicable law for inheritance cases from 17.08.2015 is primarily determined by the European Succession Regulation. To determine the applicable inheritance law, please refer to the article Italian inheritance law or German inheritance law – which law should be applied in the event of an inheritance with links to Italy?

Commencement of intestate succession

Legal succession takes effect if

• the testator dies without a will or the will is void or later becomes invalid,
• the will as a whole or with regard to part of the property does not contain any designation of inheritance,
• not all of the testator’s assets have been disposed of,
• the condition does not occur in the case of conditional inheritance,
• the testamentary heir has predeceased the testator or
• the heir has renounced the inheritance.

Caution: If the testamentary heir predeceases the deceased, the rules on substitute inheritance and accrual take precedence.

Principles of intestate succession

The legal heirs are the spouse and relatives. The order is determined as follows:

• Spouses
• Descendants
• Ancestors
• Side relatives
• Other relatives
• The state

For the sake of clarity, a distinction is made below between relatives and spouses.

Legal right of inheritance of relatives

There is an order between the relatives:

• Heirs of the straight descending line exclude heirs of the other lines
• If both the maternal and paternal ancestors are alive, they exclude the collateral relatives
• If only one ancestor and at least one collateral relative are alive, the ancestor inherits at least half and the other collateral relatives inherit proportionately according to the number of heads

Within a lineage, unless the rules of representation dictate otherwise, relatives closest in degree exclude relatives further away in degree from inheritance. One degree is one generation. The child is one degree removed from the father, two degrees removed from the grandfather and three degrees removed from the great-grandfather. The testator is two degrees removed from his brother, three degrees from his uncle and four degrees from his cousin.

Legal right of inheritance of the surviving spouse

The prerequisite for the right of inheritance is the existence of a valid marriage at the time of the inheritance. Furthermore, the claim requires that the spouses were not separated on the basis of a legally binding judgment or actually separated.

The spouse is entitled to at least one third of the statutory inheritance. This applies in the event that more than one descendant of the deceased is alive. If fewer are alive, the spouse is entitled to half of the inheritance.

In addition, the spouse may also have claims arising from the marriage. These depend on the matrimonial property regime of the spouses.

• Community of property: The surviving spouse receives half of the spouses’ assets in advance. This half is not included in the estate.
• Community of accrued gains or separation of property: the spouse is only entitled to the statutory share of the inheritance

If ancestors or collateral relatives of the deceased are alive, the spouse inherits two-thirds of the statutory share of the estate. If there are only other relatives of the deceased, the spouse inherits alone

Problems with the applicability of German matrimonial property law

If German rather than Italian matrimonial property law is applicable, problems may arise in the application of the law. As a rule, there are no problems if the spouses have chosen community of property, as this is equivalent to Italian law.

Settlement of estates with intestate succession

In the case of intestate succession, a certificate of succession must first be obtained from the competent court or notary. If Italian courts have jurisdiction, in the case of intestate succession either

• a notarial deed establishing the legal heirs (atto di notorietà) or
• obtain a European Certificate of Succession (certificato successorio europeo – o di eredità o di legato) from a notary or
• In the former Austrian territories (South Tyrol, Trentino, Veneto and Friuli-Venezia Giulia), a certificate of inheritance is issued by the competent court, comparable to the German certificate of inheritance.

Att. Prof. (GTU / Georgien) Dr. phil. Stephan J. Lang