Action of restitution of the will in Italy
The action of restitution represents a fundamental legal instrument in Italian inheritance law, closely linked to the action of reduction. It comes into play when a forced heir, that is to say an heir to whom the law reserves a share of the inheritance, sees their rights harmed due to testamentary provisions or donations that exceed the available share of the patrimony of the deceased. In other words, if a will or a donation has affected the part of the inheritance that is due by right to a close family member, the action of restitution allows recovering the assets necessary to reintegrate that share.
It is important to underline that the action of restitution is not an autonomous action, but follows the positive outcome of the action of reduction. The latter is a personal action that aims at declaring ineffective, towards the harmed forced heir, the provisions harming their share of forced heirship.
Only after having obtained a sentence of reduction, the forced heir can act with the action of restitution to concretely recover the assets to which they are entitled. The action of restitution has a predominantly real function, aimed at the recovery of the assets themselves, not only of their value.
The action of restitution is an essential instrument for the protection of inheritance rights, but its dynamics are complex and require an in-depth knowledge of the matter. Our law firm to address every case of harm to forced heirship in the best way, protecting your rights and interests, is your ideal partner, offering you personalised advice and qualified legal assistance.
What is the function of the action of restitution?
The action of restitution represents a fundamental protection mechanism in Italian inheritance law. It is activated as a direct consequence of the action of reduction, coming into play when a forced heir, that is to say an heir who by law has the right to a share of the inheritance, has seen their rights harmed due to testamentary provisions or donations that exceed the available portion of the patrimony of the deceased. Its primary function is to reintegrate the share of forced heirship, ensuring that the forced heir receives what is due to them by right.
In essence, the action of restitution allows the forced heir to concretely recover the assets that have been the object of harming provisions, whether they are real estate, money or other assets. This action is clearly distinguished from other forms of legal protection, such as the action of vindication, which aims at the recovery of an asset possessed without a valid title. The action of restitution, instead, focuses specifically on the recovery of assets transferred through liberality or will that have violated the rights of forced heirs.
It is fundamental to understand, as already mentioned, that the action of restitution is characterised by its mainly real nature, that is to say its objective is the direct recovery of the assets and not only of their economic equivalent. This distinctive feature separates it from other legal actions, which often limit themselves to providing for compensation in money. There are however regulatory exceptions, as in the case of indirect donations, in which the forced heir is entitled exclusively to the equivalent monetary value.
A lawyer to exercise the action of restitution can turn both against the direct beneficiaries of the harming provisions (donees, heirs or legatees), and against third parties who have subsequently acquired such assets. However, it is important to note that the law introduces specific protections for third-party purchasers, such as the term of twenty years from the transcription of the donation which, once elapsed, can prevent the exercise of the action of restitution against them.
Furthermore, the forced heir has the burden of preventively levying upon the patrimony of the donee, before being able to act against third-party purchasers. These aspects make the action of restitution a powerful, but also complex, instrument, that requires deep knowledge of the regulation and a well-defined legal strategy.
The action of restitution presents itself as an essential instrument to re-establish balance in inheritance rights, but its practical application requires a careful assessment of every individual case.
Boschetti Studio Legale, thanks to its competence in family law and international successions, can provide the legal assistance necessary to manage all the complexities deriving from this action, ensuring the protection of your patrimonial rights.
Prerequisites for exercising the action of restitution against third parties
The action of restitution is a fundamental instrument to protect the rights of harmed forced heirs. However, when it comes to exercising it against third-party purchasers, that is to say those who have acquired assets that are object of harming donations or testamentary provisions, it is necessary that specific prerequisites exist.
This action, in fact, is not automatic and requires a precise assessment of various elements.
Boschetti Studio Legale, thanks to its experience in international inheritance law, carries out an accurate analysis of these prerequisites, guiding you in the legal path most suited to your case.
First of all, it is essential that the forced heir has obtained a favourable sentence in the action of reduction. This sentence is the necessary prerequisite to be able to then act in restitution.
Without a pronouncement that declares the ineffectiveness, total or partial, of the harming provisions, one cannot proceed to the recovery of assets towards third parties. The action of reduction, in fact, ascertains the harm to the share of forced heirship and is the foundation for the action of restitution.
Another fundamental prerequisite is the preventive levy upon the patrimony of the donee.
The forced heir, before being able to act against third-party purchasers, must have attempted, without success, to recover the value of the assets from the donee or from the direct beneficiary of the harming provision. This means that, the forced heir will have to seek to obtain the equivalent in money from the donee and, only if this is not possible, will be able to turn to third-party purchasers.
Furthermore, it is essential to consider the term of twenty years from the transcription of the donation. The law, in fact, provides that, once twenty years have elapsed from the transcription of the donation, the action of restitution cannot be exercised against third-party purchasers, unless the spouse or relatives in direct line of the donor have notified and transcribed an act of opposition to the donation. This term is a safeguard for third-party purchasers and underlines the importance of acting promptly.
It is important to underline that, even in the presence of all these prerequisites, the third-party purchaser has the faculty of freeing themselves from the obligation of restitution in kind of the asset by paying the equivalent in money. This right of redemption can avoid the physical restitution of the asset and, often, makes the resolution of the question easier.
Finally, it is highlighted that, in the case of indirect donations, the action of restitution is not admitted against third-party purchasers. In these cases, the forced heir can obtain only the equivalent in money of the value of the donee’s enrichment, with the modalities typical of the right of credit.
The prerequisites for exercising the action of restitution against third parties are, therefore, numerous and complex, requiring a deep knowledge of the succession matter and a precise legal strategy.
Boschetti Studio Legale is at your disposal to offer you personalised advice and guide you in the most appropriate path to protect your rights. Do not hesitate to contact us for a detailed analysis of your case.
The action of restitution and the agreements for the reintegration of the share of forced heirship
The action of restitution represents an essential means to ensure the protection of forced heirs whose rights have been compromised by testamentary provisions or donations that exceed the share of patrimony reserved to them by law.
However, in some cases, it is possible to achieve the same result through agreements for the reintegration of the share of forced heirship, which represent an alternative to the judicial path. These agreements are transactions between the forced heir and the beneficiaries of the harming provisions, aimed at reintegrating the share of forced heirship in a concerted way. Boschetti Studio Legale, with its deep knowledge of inheritance law, can assist you in the negotiation of such agreements, ensuring that your rights are fully protected.
It is important to underline that, unlike the action of restitution, which aims at the recovery of assets in kind, the agreements of reintegration can also provide for alternative modalities of reintegration, such as the payment of a sum of money or the transfer of other assets. These agreements are based on the autonomy of the parties and can be more flexible compared to the rigid dynamics of judicial process.
Traditional doctrine admits the possibility that an agreement may substitute the jurisdictional ascertainment of the harm to forced heirship, specifying that such agreements do not have a translative nature and constitute neither transaction nor novation, but are inserted into the succession event modifying it.
However, the identification of the effects of these agreements is controversial. Some maintain that they only have an ascertainment function, while others consider that they may also have translative effects, modifying the transfer of assets. The agreement can be seen as a deed in which the heir “abandons” to the forced heir the share exceeding the available portion, with the effect that the acquisition of the assets occurs by necessary and real effect of the agreement.
It is important to note that according to a different doctrinal approach, the agreement cannot attribute the quality of heir to the omitted forced heir, except through judicial control. According to this thesis, the agreement of reintegration would not directly transfer the assets, but would remove the obstacle to the operability of the legal vocation, with the consequence that the forced heir acquires the quality of heir. Such approach seems preferable, given that it equates the effects of the agreement to the sentence of reduction: ineffectiveness of the harming provision and operability of the vocation ex lege in favour of the forced heir.
From the fiscal point of view, the agreements of reintegration are treated differently from transactions. While the transaction produces translative effects and constitutes the title of acquisition for the forced heir, the agreement of reintegration is a transaction of ascertainment with which the parties achieve a patrimonial result identical to that provided for by the rules on necessary succession. The title of acquisition of the forced heir, in this case, is the law and not the agreement itself.
Finally, it is fundamental to know that the agreements of reintegration, entailing the tacit acceptance of the inheritance, are subject to transcription pursuant to art. 2648 c.c..
The agreements for the reintegration of the share of forced heirship represent a valid instrument to resolve succession disputes more rapidly and efficiently, but their correct application requires a deep knowledge of the regulation and of practice. Boschetti Studio Legale offers specialised advice on the topic of agreements of reintegration, ensuring maximum protection of your interests. Contact us to assess the solution most suited to your specific case.
Typical scenarios / Case studies
The typical scenarios have been developed by combining the most significant family law situations that our firm regularly handles, creating structured and realistic examples designed to help readers better understand and navigate their own legal matters. The case studies, on the other hand, are based on real cases handled by our firm, with all personal data and identifying details anonymised to protect client confidentiality.
Registering a cohabitation agreement and regularising the status of a foreign partner
A couple living in Rome, consisting of an Italian citizen and his foreign partner without valid residence documents, sought legal protection for their relationship. An urgent application under Article 700 of the Italian Code of Civil Procedure was filed to safeguard their cohabitation, followed by proceedings to obtain an EU family member residence card.
Adult adoption to legally recognise a de facto family relationship
A United States citizen living in Rome sought to formalise a long standing family relationship with his uncle by marriage through adult adoption. Proceedings were brought under Articles 291 et seq. of the Italian Civil Code to obtain legal recognition of their established family bond.
Cohabitation agreement for an Italian Brazilian couple: protecting assets and securing residence rights
An Italian entrepreneur and his Brazilian partner had been living together in Milan for three years. Their situation involved three interconnected legal vulnerabilities relating to immigration, asset protection and succession planning, all addressed through a coordinated legal strategy.
Adoption in Colombia: an Italian couple fulfils their dream after a three year journey
A couple married for eight years embarked on an international adoption in Colombia. The procedure involved two legal systems, three Italian institutions and the Colombian Central Authority, requiring careful coordination throughout every stage of the process.
Succession involving heirs in four different countries: coordinated management across Italy, the United States, the United Kingdom and Switzerland
An Italian entrepreneur left assets located in Italy, the United States and Switzerland, with four heirs residing in four different countries. The matter required the parallel coordination of four legal systems and four tax regimes.
Adult adoption of a partner’s child: legal recognition of a twenty year family bond
A fifty eight year old man seeks to adopt his wife’s thirty year old son, whom he has helped raise for twenty years. Although the relationship was genuine and long established, it had no formal legal recognition, with significant implications for the biological children’s inheritance rights.
Challenging a will for infringement of forced heirship rights: €800,000 recovered for the heirs
Two children inherited only €20,000 each under a will that left almost the entire estate to their late father’s second wife. An action to enforce their forced heirship rights was successfully resolved through mediation.
Succession planning for a family business: transferring a €3 million business to the next generation
A sixty two year old entrepreneur needed to transfer ownership of a company employing fifty people to the son who had been managing the business, while safeguarding the interests of his daughter, who had chosen a different career path. A family agreement and a holding structure ensured business continuity and long term stability.
International adoption by a single parent: when the law opens a path few people know exists
A forty five year old single woman embarked on an international adoption. Although legally possible, this route remains little known and requires a carefully planned legal strategy from the very first stage, beginning with the application for the certificate of suitability.
Digital inheritance: recovering cryptocurrencies and digital assets after death
A professional passed away leaving more than €600,000 in cryptocurrencies held across multiple wallets and exchanges, without providing any access instructions. A substantial digital estate was at risk of being lost forever.
Legal name change for a transgender person: aligning official documents with gender identity
A thirty two year old professional, who had been undergoing hormone therapy for eight years, still had official documents bearing the male name assigned at birth. This discrepancy repeatedly forced unwanted disclosure of her gender identity in professional, banking and administrative settings.
Legal gender recognition and the update of more than 20 official documents: from court judgment to a new legal identity
A forty five year old executive had already obtained a court order granting legal gender recognition but was then faced with the real challenge: coordinating the update of an identity card, driving licence, university degree, employment records, mortgage documentation and insurance policies across multiple authorities, each with different procedures.
Legal advice for the action of restitution of the will
The action of restitution, as an instrument to protect the rights of forced heirs, takes on even greater complexity when applied to international contexts, where regulations can vary significantly from country to country. In these cases, specialised legal advice becomes essential to navigate the peculiarities of international inheritance law and to ensure that one’s rights are fully recognised. Boschetti Studio Legale, with its experience in family law and international successions, offers complete and personalised legal support to address the challenges that these situations may present.
One of the main difficulties for foreign citizens who find themselves having to face a succession in Italy concerns the understanding and application of the rules on forced heirship. Italian law, in fact, reserves a share of the inheritance to certain family members (spouse, children, and in some cases ascendants), and this share cannot be harmed by the testamentary provisions or donations made by the deceased. The action of restitution is the means through which forced heirs can assert their rights when this share is harmed.
Furthermore, it is fundamental to consider that the laws regulating international successions can vary considerably. The law applicable to the succession, in fact, is not always that of the country of residence of the deceased, but may be that of the country of citizenship or of the place where the inheritance assets are located. For this reason, it is necessary to carefully analyse every individual case, taking into account both Italian rules and applicable foreign ones.
Another critical aspect is the assessment of inheritance assets. In case of international successions, often the assets are located in different countries and may comprise real estate, bank accounts, securities, and other types of property. Their correct identification and assessment is fundamental to determine the extent of the share of forced heirship and, consequently, the amount of the harm suffered. Boschetti Studio Legale offers a complete service of legal assistance, from the gathering of documentation to the analysis of applicable laws, up to the preparation of the legal strategies most suited to protect your interests.
Knowledge of the exceptions to the principle of real retroactivity of the action of reduction is fundamental. As we have seen, there are cases in which, despite the harm to forced heirship, the forced heir will not be able to obtain the restitution of the assets from third-party purchasers, for example, when twenty years have elapsed since the transcription of the donation, unless an opposition has been notified. An accurate analysis of such exceptions is a crucial step for a successful strategy.
It is also essential that foreign clients be aware of the timeframes within which legal actions must be undertaken. The action of reduction, in fact, is subject to prescription, and the terms can vary depending on the circumstances. It is therefore fundamental to act promptly so as not to lose one’s rights.
Finally, for foreign clients it is relevant to understand the costs and timeframes necessary to undertake an action of restitution. Boschetti Studio Legale offers transparent and clear advice on all these aspects, ensuring its clients a complete view of the legal path to be undertaken.
In summary, the action of restitution in international contexts requires an in-depth knowledge of the regulation and a solid legal strategy. Boschetti Studio Legale is at your disposal to offer specialist advice and legal support in every phase of the process. Contact us for an initial assessment of your case, we will be pleased to assist you in the best way.
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How can I protect my patrimony?
Protecting the patrimony means preserving its value and integrity. You can use instruments such as the trust to separate assets from personal risk, or the patrimonial fund to bind them to family needs. It is fundamental to plan with experienced advisors, also assessing specific clauses in contracts and insurance policies. Every solution must be personalised, considering your needs, the nature of the assets and possible future risks.
How to safeguard the family patrimony?
To safeguard the family patrimony, it is useful to create legal and strategic protection through instruments such as the trust or holdings. These allow managing assets and activities separating them from personal risk. You can also integrate donations with reservation of usufruct, family pacts and succession contracts. Targeted planning protects not only the assets, but also the harmony and generational stability.
How to protect real estate?
The protection of real estate requires targeted legal solutions, such as destination constraints or registration in specific companies. A patrimonial fund protects real estate in favour of the family, while the trust ensures targeted management separated from personal risks. It is useful to provide for adequate insurance policies and verify the cadastral and urban planning situation, preventing future disputes or claims.
What is the function of the action of restitution?
The action of restitution allows creditors to recover assets fraudulently transferred by the debtor to escape their obligations. This instrument ensures equity in economic relations, avoiding that simulated deeds or fictitious donations prejudice the rights of creditors. It is a form of credit protection that is activated to reintegrate the attackable patrimony of the debtor.
