Family pacts in Italy

With regard to inheritance pacts, the codice civile provides for the nullity of every agreement by which someone disposes of their succession. At the same time, every act by which one disposes of rights that may be due on a succession not yet open, or renounces them, is null.

The nullity of inheritance pacts is provided for by the legislator in order to protect the freedom of the testator to dispose of their assets while alive; it follows that an agreement falls within prohibited inheritance pacts only where it implements the transmission of rights relating to a succession not yet open and gives rise to a legal bond, of which the subsequent testamentary disposition constitutes the fulfilment.

In order to verify whether an inheritance pact exists, it is necessary to ascertain:

• whether the legal bond created had the specific purpose of constituting, modifying, transmitting or extinguishing rights relating to a succession not yet open;
• whether the thing or rights object of the agreement were considered by the contracting parties as entities of the future succession or must in any case be included in it;
• whether the promissor intended to provide in whole or in part for their own succession, thus depriving themselves of the ius poenitendi;
• whether the purchaser contracted as entitled to the succession itself;
• whether the agreed transfer, from the promissor to the promisee, must take place mortis causa, that is to say as inheritance or legacy.

As we have seen above, the law provides for an express derogation for family pacts. There are however very stringent requirements for the family pact, for this reason the presence of a lawyer is fundamental. Among other things, it is not certain that the family pact is the most suitable instrument to protect the interests of the client, nor is it certain that the requirements exist. Therefore at Boschetti Studio Legale we carry out a very in-depth examination of the case, which takes into account multiple aspects linked, in addition to the disposing party and the assignee, to all the subjects who claim succession rights, presenting to the client also other practicable options.

In the event that the client confirms the will to stipulate a family pact, we will assess:

• the personal and patrimonial qualities of the subjects involved;
• the interpersonal relationships between the participants in the family pact;
• the object of the family pact;
• the reasons why one intends to proceed to the stipulation of the family pact;
• what are the aspects and elements that could be regulated in the pact.

In particular the law firm for family pacts will have to verify that the disposing party can be considered an entrepreneur or holder of company shares, therefore that the subjective element exists. Furthermore, the lawyer will assess:

• the patrimonial regime in which the disposing party finds themselves with their spouse and whether the latter is also a holder of shares;
• whether in addition to the company the disposing party is the holder of other assets, in order to plan a more global succession that takes into account all the assets;
• whether the descendant to whom the business is to be attributed is of age, or whether due to young age, it might be preferable to transfer bare ownership, assigning the usufruct to another forced heir;
• whether the descendant has economic availability to liquidate the non-assignee forced heirs.

It must finally be verified whether the non-assignee forced heirs intend or not to participate in the pact, whether they are available to renounce in whole or in part the liquidation by the assignee. The lawyer for international, or national, family pacts must then take into account that even if the family pact excludes mandatory collation, the forced heirs can voluntarily agree to recalculate and rebalance the shares, thus creating a sort of voluntary collation.