Inheritance pacts in Italy

Inheritance pacts, admitted with limits by Italian law, allow planning succession by avoiding future conflicts. For foreign citizens, it is important to verify compatibility with the rules of one’s country of origin. Legal advice is fundamental to avoid future problems and disputes.

Both in the area of national and international succession, one of the most relevant topics for those who find themselves dealing with the matter are certainly inheritance pacts.

In extreme synthesis, the inheritance pact is a transaction through which a person disposes of their inheritance before their death. These pacts are prohibited in many countries, including Italy, but may be valid in other European States. For foreigners residing in Italy or who own assets in our country, it is fundamental to understand how these inheritance pacts for foreigners apply in the various jurisdictions.

Boschetti Studio Legale specialises precisely in resolving the differences in regulation in the various national legal systems. We help clients from all over the world to manage delicate issues such as those relating to family law and to succession with transnational profiles.

Inheritance pacts in Italy and in the rest of Europe

Italian law, as anticipated, sanctions with nullity every agreement by which someone disposes of their succession when still alive, as well as every act by which one disposes of rights that may be due to the person on a succession not yet open.

Inheritance pacts are prohibited because they violate the fundamental principle of our legal system according to which the testator must be free to decide on their assets up to the moment of their death, even if they are taking on bonds towards the spouse or children, that is the closest relatives.

Inheritance pacts include both agreements that establish the appointment of an heir in contractual form, and those that concern the creation, transfer or extinction of rights on a succession not yet open, binding the parties in such a way that the inheritance disposition becomes the execution of an obligation previously assumed.

To better understand, one can recall the example in which case law has recognised as inheritance pact a private writing in which a sister had accepted the transfer of ownership of properties of the father to the brothers, receiving in exchange a sum of money. This sum was interpreted as a renunciation, by the beneficiary, of her rights as forced heir (Cass., sez. II, 19 novembre 2009, n. 24450).

However, the situation changes if we look at other European countries. For example, in Denmark, Poland, France and Slovenia, national law prohibits institutive inheritance pacts but admits the preventive renunciation of inheritance; while in other States inheritance pacts are considered valid.

For foreigners who present cases of succession that lie astride different legislations, it is essential to consult a lawyer for inheritance pacts. Boschetti Studio Legale, with its team of lawyers specialised in succession, deals precisely with resolving these legal complexities, offering assistance to clients facing an international succession.

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Derogations from the nullity of inheritance pacts

The legislator provides for a derogation from the prohibition of inheritance pacts with the rules that provide for and regulate “family pacts”. These are, in this case, agreements destined to regulate the succession of the entrepreneur or of the holder of company shares, having as object the assignment of the company or of the aforementioned shares to the descendants of the entrepreneur.

Furthermore, if one wishes to speak of derogations, it must be taken into account that there are some European States that do not provide for the prohibition of inheritance pacts, as instead happens in Italy. Therefore, if one is in the presence of an international succession, the application of a regulation in favour of inheritance pacts can constitute a derogation from the general prohibition.

In this regard, it must be observed that EU Regulation 650/2012 allows citizens of foreign Countries, who reside in Italy or own assets on the territory, to choose the national law of their country of origin to regulate their succession. This opens the way to the possibility of asserting inheritance pacts where the law of the country of origin allows them. In these cases, turning to a law firm for foreigners like Boschetti Studio Legale is fundamental to navigate among the various regulations and protect inheritance rights deriving from complex successions.

Types of inheritance pacts

Inheritance pacts are mainly distinguished into three categories, the common feature of which is that it is a non-testamentary legal transaction having as object a future succession:

Institutive inheritance pacts: this is a succession contract, by which one disposes of the succession in favour of the future heir or legatee;
Abdicative inheritance pacts: by which a subject preventively renounces the rights that may be due to them from a future succession;
Dispositive inheritance pacts: by which a subject disposes of the rights that they expect to acquire by succeeding by reason of death to another subject.

An example of institutive inheritance pact could be the following: a father stipulates a contract with his son, in which he commits to appoint him universal heir of all his assets at the moment of his death. This agreement establishes in advance who will be the heir, binding both parties and preventing the father from changing his mind in the future without the son’s consent.

As regards instead the abdicative inheritance pact: a son stipulates an agreement with his father in which he preventively renounces his share of inheritance, declaring that he will have no right on the assets of the father at the moment of his death. In exchange, he might receive a sum of money or a specific asset as compensation.

Finally, an example of dispositive inheritance pact: a father stipulates an agreement with one of his sons, in which he immediately transfers ownership of some of his real estate to the son, but with the condition that these assets remain in his possession (usufruct) until his death. In this case, the father is disposing in advance of his assets, transferring bare ownership to the son, while reserving the usufruct until the end of his life.

All these agreements are generally considered null inheritance pacts in Italy, but may be valid in other jurisdictions. The lawyers of Boschetti Studio Legale are experts in advising clients on how to address these complexities, suggesting legal solutions modelled on the needs of the specific case and addressing transnational issues by applying the rules of private international law.

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.

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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.

Result: The application was granted in full by the Court of Rome, and the EU family member residence card was obtained within 8 months.

Read the full case study

Adoptions

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.

Result: The adoption was granted in full by the court, with the procedure completed within 10 months.

Read the full case study

Cohabitation

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.

Result: The cohabitation was successfully registered, the family residence permit was obtained and the couple’s assets were protected within 3 months.

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Adoptions

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.

Result: The adoption procedure was successfully completed within 3 years without any procedural issues, and the adoption was duly registered in Italy.

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Successions

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.

Result: The estate administration was completed within 14 months, achieving tax savings of more than €320,000.

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Adoptions

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.

Result: The adoption was granted in full by the court, with no objections filed.

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Successions

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.

Result: €800,000 recovered through mediation, increasing the infringed forced heirship entitlement by more than 95%.

Read the full case study

Successions

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.

Result: The business was successfully transferred with the unanimous consent of all family members and full tax exemption within 6 months.

Read the full case study

Adoptions

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.

Result: The certificate of suitability was granted to a single applicant, and the adoption was successfully completed within two and a half years.

Read the full case study

Successions

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.

Result: €605,000 in cryptocurrencies was successfully recovered in full within 5 months.

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Gender identity

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.

Result: The court granted the legal name and civil registry rectification, and all official documents were updated within 6 to 12 months.

Read the full case study

Gender identity

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.

Result: More than 20 official documents were successfully updated within 6 to 10 months, with complete confidentiality ensured throughout the entire process.

Read the full case study

Legal advice on inheritance pacts for foreigners

The regulation of succession, at international level, has been innovated with EU Regulation n. 650/2012, which regulates competence, applicable law, recognition and execution of decisions and public acts in inheritance matters.

The Regulation, which means by succession by reason of death “any modality of transfer of assets, rights and obligations by reason of death”, establishes the principle of coincidence between Forum and applicable law, as well as the applicability of a single inheritance law regardless of the nature and the place where the inherited assets are located. Finally, the reciprocal recognition of decisions and other acts adopted in the context of the succession case is provided.

Another particularity of the Regulation is to have established the “European certificate of succession”, having the value of legal proof as regards the existence of inherited assets, the identification of heirs, legatees, executors and administrators of the inheritance and their rights and powers. Said certificate constitutes title for registration in real estate registers. In Italy, the European certificate of succession is issued by notaries.

The Regulation identifies as Forum competent to deal with disputes in matters of succession the State of habitual residence of the deceased at the time of death. From the principle of coincidence between Forum and law, mentioned above, follows that the applicable law is that of the Forum.

A subsidiary competence is then provided for if the deceased did not have residence in a Member State at the time of death: in such cases, the judge of the Member State where inherited assets are present (only one is sufficient) is competent, if the deceased was a citizen of said State, or otherwise if they had habitually resided there and no more than 10 years have passed.

In conclusion, EU Regulation n. 650/2012 represents an important innovation in the field of international successions, simplifying the management of inheritances for foreigners in Europe. Thanks to the possibility of applying a single inheritance law and to the reciprocal recognition of decisions, the regulation reduces uncertainties linked to competence and applicable law. However, issues linked to successions for foreigners and to inheritance pacts for foreigners in Italy remain complex, especially in the presence of assets in different jurisdictions or when one wishes to choose the law of the country of origin to regulate the succession.

For this reason, it is essential to turn to a law firm specialised in international law, like Boschetti Studio Legale, which can offer qualified advice in matters of inheritance pacts and management of inheritances. Thanks to the assistance of professionals experienced in international successions, it is possible to successfully address every aspect of inheritance planning and management, ensuring respect for the will of the deceased and the protection of the interests of the heirs.

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How to bypass the prohibition of inheritance pacts?

Bypassing the prohibition of inheritance pacts is not possible in Italy for a national succession, that is to say one that does not present cross-border elements. The prohibition of inheritance pacts in Italy can only be overcome by applying the law of a foreign Country that admits them, as provided for by Regolamento Europeo 650/2012, but it must be an international succession that provides for the application of such law.

Which lawyer to turn to for inheritance?

When choosing which lawyer to turn to for inheritance it is advisable to narrow the field to lawyers experienced in inheritance law, taking into account that in the presence of cross-border elements, it would be appropriate to turn to lawyers who deal with international successions.

What are the prohibited inheritance pacts?

The prohibited inheritance pacts, in Italy, are all, except the family pact. They are pacts by which one designates in advance a person as heir or beneficiary of a legacy in the future succession (so-called institutive), or a person preventively renounces the rights that they could have on a future inheritance (so-called abdicative), or a person disposes of the rights that they expect to obtain by inheriting from someone else following their death (so-called dispositive).

When are inheritance pacts admitted?

When inheritance pacts are admitted Italian law provides for it specifically: the derogation is the family pact, an agreement that concerns the succession of the entrepreneur or of the holder of company shares. Furthermore, inheritance pacts may be admitted where not sanctioned by another State which, by Regolamento Europeo 650/2012, must be considered competent to regulate the international succession.

What are inheritance pacts and why are they prohibited?

Knowing what inheritance pacts are and why they are prohibited is fundamental for those who are about to come into contact with the matter of succession. Inheritance pacts are agreements in which one disposes in institutive, abdicative or dispositive form of one's inheritance before death. In Italy, they are prohibited to protect the freedom of the testator up to the moment of death.