When we move abroad, we naturally assume that the law of our home country will preside over that of our chosen expatriate one. This is not necessarily true nor should legal issues in foreign countries be taken lightly. One classic example is the Italian Law of Succession. This law principally protects the family thus allowing your children or spouse to continue to enjoy your Italian property after your death; this may be all well and good if this is something which you had planned and assuming you have a close relationship with each of your family members. If you own property in Italy, be prepared to face the Italian law in some form or other.
You may have a foreign will in which you explicitly express your wishes; however, the Italian law states that they must be authenticated by an Italian Public Notary before executing the probate. Managing documents drafted in a foreign language and covered by a foreign jurisdiction in Italy can raise a number of difficulties. As a matter of fact, the notary will not publish or legalize documents drafted in a foreign language unless duly translated into Italian. The likelihood is that these documents would require a qualified translator/interpreter whose costs could be substantially higher than drafting an Italian Will in the first place.
The law is applied differently according to the different circumstances of marriage, communion of assets or cohabitation. In this modern age where many of us cohabit, adopt children and have same-sex partners we need to ensure that our final wishes are supported in a foreign country.
As a result of the Italian law of succession some heirs cannot legally be excluded from the succession, these heirs are known as forced heirs, even in case of testamentary succession. A part of the deceased’s assets (reserved quota) must be assigned to forced heirs. This can be beneficial to someone who may have inherited a property for example as the Italian law protects the family yet also allows the testator a portion of their property which they can leave to whom they wish, without any limitation. The inheritance procedure of an unmarried couple with a child for example, should one of the parents die, half of the property is reserved legitimately for the child whilst the testator is free to dispose of the other half as they wish i.e. their partner. This also has the reverse effect, should you be entitled to part of an inherited property in Italy, the testator cannot exclude you from your legal rights.
Therefore, the drafting of an Italian Will has several benefits; the elimination of the language barrier and the clear direct communication of your wishes which immediately minimizes the risk of conflicts among heirs following the death of the testator. It also ensures that the Italian authorities have a legal document which can be registered and published. The application of Italian inheritance law is as follows:
Couples married under the communion of assets: At the death of one of the spouses, the surviving spouse inherits the undivided half of all assets included in the union of marriage. Any gift of inheritance that has been received during the course of the marriage is excluded from the assets.
Couples married under regime of separation of assets: Only assets in the name of the deceased are taken into account. Should the property of residence be in the name of both spouses (with no children) it will be inherited at 50%. A house bought solely by the deceased in his/her sole name will be inherited at 100% by the surviving spouse. The bank accounts if not in the name of both spouses, will be inherited at 100% by the surviving spouse.
Couples married but under regime of separation by mutual consent: In case of mutual consent, the surviving spouse keeps all the rights over assets considered part of the succession.
Couples married but under judicial separation: Should the spouse considered liable for the separation be granted a monthly maintenance payment by the courts at time of the legal separation (pursuant to art. 548, par. 2 of the Italian Civil Code), he/she will be entitled to retain a lifelong monthly payment as long as there is no change in the economic circumstances of the surviving spouse and only if the inheritance assets are sufficient to guarantee this lifelong payment.
Divorce: In case of divorce, the surviving spouse loses all rights to inheritance, but the Decree Absolute must have already been issued prior to the death of a spouse.
Cohabitation/ Common-law Partnership and same-sex marriages: Unfortunately, Italy does not recognize any rights for unmarried or gay partners. Therefore they can only inherit in cases of a testamentary succession and for the available quota reserved by the Law.
It is better to avoid complicated situations especially as the matter of death and inheritance is such a sensitive issue. It is essential for partners to draft a Will in order to clearly express their wishes and avoid difficult circumstances for the surviving partner who will not be recognized as an heir under Italian Law.
Please note, any statement made in this article is intended to be a general practical introductory explanation only and not advice. This firm accepts no liability or any responsibility for any statement made.
By Tullio Law Firm, an international law firm specialized in Italian inheritance law and Italian cross border real estate transactions. Listed on the British and American embassies websites, the firm offers assistance with wills & probates, EU law, litigation, taxes and corporate law at www.detulliolawfirm.com