Inheritance retraction in Italy
- Inheritance retraction in Italy
- How inheritance retraction works: the prerequisites
- Inheritance retraction: when it applies
- Modalities of exercise of the pre-emption
- Consequences of violation of the pre-emption right
- Distinction between inheritance, voluntary and testamentary pre-emption
- Legal advice for inheritance retraction for foreigners
Inheritance pre-emption is a right recognised to co-heirs when one of them wishes to sell their share of inheritance or a part of it. In this case, the co-heir who exercises the pre-emption right has the possibility of purchasing the share of the seller under the same conditions offered to third parties.
This mechanism serves to ensure that inherited assets remain within the family, preventing strangers from entering the inheritance community.
Consequently, the co-heir who intends to alienate their share is obliged to communicate their intention to the other co-heirs, specifying the terms and conditions of the operation through a formal contractual proposal.
In this context, Boschetti Studio Legale can offer clear and strategic assistance, helping the client to understand their rights and to exercise the pre-emption in a timely and effective manner. For example, the firm can ensure that the communication of the intention to sell the inheritance share is managed in compliance with the law, even where it concerns inheritance retraction for foreigners, avoiding future disputes.
It must also be clarified that the pre-emption right attributes to co-heirs a legal pre-emption on the inheritance share, not on individual assets. Such right exists until the moment in which an inheritance division is not perfected. This means that, once the division has taken place, the co-heirs assigned the rights attributed with the division will not be entitled to a pre-emption right in case of sale of the assets or rights themselves.
- Succession
- Declaration of succession
- Inheritance succession
- Legitimate succession
- Testamentary succession
- International succession
- Succession planning
- Business succession
- Generational transition of the business
- Family pacts
- Patrimonial planning
- Inheritance pacts
- Inheritance retraction
- Patrimonial segregation mortis causa
- Particular phenomena of succession
How inheritance retraction works: the prerequisites
For inheritance pre-emption to apply, some fundamental prerequisites must exist. First of all, an inheritance community must exist, which implies the presence of multiple heirs.
As already anticipated, pre-emption does not operate if the division of inherited assets has already taken place, since once the assets are assigned in exclusive ownership or in community, the inheritance community ceases to exist. Even if the division has been ordered by the testator, the rule does not apply, because in such case the community is not formed.
Another requirement is that the transfer of the share takes place for consideration, that is to say in exchange for payment or other type of fungible consideration. It is not applicable, for example, in case of donation. The sale must concern the inheritance share or a part of it and must be destined to a third party extraneous to the community, thus excluding transfers between co-heirs.
The main function of this right is to keep the inheritance community as much as possible within the family circle, avoiding the entry of extraneous persons. This is important to preserve the integrity of inherited assets, prevent excessive fragmentation and reduce potential conflicts between co-heirs. Keeping the assets within the family also facilitates future division operations and the optimal economic management of the patrimony.
If one finds oneself in this situation, Boschetti Studio Legale can help the interested co-heirs to block the transfer to third parties, protecting the pre-emption rights. The firm can also intervene to correctly interpret the regulation in force and, in case of unlawful transfer of the share to third parties, assist in recovering the part sold through the right of redemption.
Inheritance retraction: when it applies
The Codice civile regulates the inheritance pre-emption applicable in case of sale of an inheritance share. Normally, the inheritance patrimony consists of a multiplicity of assets, therefore the transfer of a single part of an asset does not directly fall within the scope of application of the pre-emption, unless that asset in fact represents the entire patrimony or if the parties intend to consider the sale as a transfer of the entire inheritance share.
A particular situation occurs when a co-heir married under the legal community regime intends to purchase an inheritance share. In this case, pre-emption does not apply, since the spouse enters into community by law. The transfer of bare ownership is also subject to pre-emption, because the rule refers to the inheritance share in general.
In case of sale with right of repurchase, pre-emption does not apply, since the exercise of the right of repurchase precludes the activation of the pre-emption. The same applies to sales with reservation of ownership: the pre-emption is triggered only with the definitive transfer of ownership, which takes place with the payment of the last instalment of the price.
Modalities of exercise of the pre-emption
The co-heir who intends to sell their inheritance share must send to the other co-heirs a true contractual proposal, not a simple communication of intent. In it, all the conditions of the sale must be specified, and the co-heirs have two months from the last notification to exercise the pre-emption right.
The aid of a lawyer to draft this proposal in an exhaustive, complete and law-compliant manner.
If the pre-emption is not exercised within the aforementioned limitation period of inheritance retraction, the seller is free to transfer their share under the conditions established. However, if the sale does not conclude with a stranger, the pre-emption right is not extinguished.
In this phase, the assistance of Boschetti Studio Legale is crucial to correctly draft the contractual proposal and ensure that the terms are legally binding. The firm can follow the process step by step, from the drafting of the proposal to the management of the responses of the other co-heirs, ensuring that all legal fulfilments are respected.
Consequences of violation of the pre-emption right
If the co-heir sells their share without respecting the pre-emption right, the sale is not annulled, but the other co-heirs can exercise the right of redemption. This right allows redeeming the share sold from the purchaser or from subsequent purchasers under the same conditions provided in the deed of sale.
It must in fact be specified that inheritance retraction is a complex case, which comprises two distinct phases:
- the right of pre-emption, by virtue of which the subjects participating in the community have the right to be preferred over third parties extraneous to the community when one of the co-heirs intends to sell their share in the persistence of the community regime;
- the right of redemption, having absolute nature and exercisable against any purchaser of the assets to whom, in the persistence of the community, these have been sold for consideration in violation of the pre-emption right.
Therefore, to the right to be preferred in the purchase corresponds the obligation for the potential alienating co-heir to notify the other co-heirs of the proposal of alienation, thus putting them in a position to accept and to await the lapse of the time granted by law to the offerees before reaching the perfection of the transfer.
Should this obligation not be respected, co-heirs are attributed by law the right to redeem the share from the purchaser and any subsequent successor in title.
It can therefore be concluded by stating that the right of redemption represents the most complete remedy for the breach of the pre-emption obligation.
Boschetti Studio Legale can promptly intervene to protect the rights of the client, helping them to exercise the redemption and to regain the share sold, acting in short time to avoid the perfection of the transfer.
Distinction between inheritance, voluntary and testamentary pre-emption
In addition to inheritance pre-emption, other forms of pre-emption exist. Boschetti Studio Legale can assist clients in understanding these differences and, if necessary, protect them in situations where a voluntary pre-emption agreement has been violated or where a testamentary provision has not been respected. The firm can assess the possibilities of obtaining compensation or other forms of legal protection.
Voluntary pre-emption is a contractual agreement stipulated between co-owners, in which each commits to grant a right of preference to another co-owner in case of sale of their share, and where such pre-emption is violated, the only remedy is compensation for damages, without the possibility of annulling the sale to a third party; testamentary pre-emption, instead, is provided for by provisions contained in the will of the de cuius, which can establish that certain inherited assets are offered in pre-emption to specific subjects, and in case of failure to comply, particular sanctions may be provided or, in the absence of other provisions, compensation for damages, with the aim of keeping the assets in the family or ensuring that they are transferred to the person designated by the testator.
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 inheritance retraction for foreigners
Legal advice for inheritance retraction for foreigners is an essential service to address the complexities of international inheritance law. Inheritance retraction allows heirs to exercise a pre-emption right on inherited assets, but if you are abroad, its functioning depends on the applicable law.
According to EU Regulation n. 650/2012, the law that regulates succession is usually that of the country in which the deceased had habitual residence, unless the law of the country of citizenship has been chosen. If the assets are located in another State, local rules might influence the application of the retraction, especially for real estate.
It is fundamental to exercise the pre-emption right within the deadlines established by law and, if necessary, to start a legal proceeding in the country where the assets are located. In this context, rely on Boschetti Studio Legale to receive qualified legal advice in private international law, which will help you to manage conflicts of laws and to coordinate the jurisdictions involved, ensuring the correct protection of inheritance rights.
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How is inheritance retraction exercised?
Inheritance retraction is exercised after the sale of an inheritance share without respecting the pre-emption right. The co-heirs redeem the share from the purchaser, under the same conditions of the sale, to reintegrate it into the inheritance community.
How long does the inheritance pre-emption right last?
The inheritance pre-emption right lasts up to two months from the formal notification of the proposal of sale by the alienating co-heir. If it is not exercised within such term, the share can be sold to third parties.
How is the pre-emption right exercised between co-heirs?
The co-heir who intends to exercise the pre-emption right must formally accept the proposal of sale within two months of the notification. The acceptance allows purchasing the share under the same conditions offered to third parties.
What is inheritance pre-emption?
Inheritance pre-emption is a right recognised to co-heirs, which allows them to purchase an inheritance share for sale before it is transferred to third parties, keeping the inherited assets within the family.
