One of the least discussed but most delicate topics concerns the relationship between inheritance and divorce. Many people who are separating or who are drafting a will wonder whether the former spouse can still claim inheritance rights or have a say in the testamentary dispositions.
To answer, it is essential to distinguish between separation and divorce. With separation alone, the marriage bond remains formally active: this means that the separated spouse still has, at least in part, inheritance rights. In the event of the death of the “guilty” spouse (i.e. with separation with charging of fault), the other spouse may even lose all rights, save where they are in a state of need and entitled to maintenance.
With divorce, instead, the marriage is definitively dissolved and with it the inheritance rights of the former spouse are extinguished, save where the testator has expressly reinstated them in their will. In this sense, the succession after divorce entails a clean break from a legal point of view.
Understanding the difference is essential for those wishing to safeguard their estate or for those who fear that the former spouse may still advance claims.
The effect of divorce on inheritance rights and on family assets
Anyone wondering what happens to assets after divorce should know that the former spouse automatically loses the status of legal heir. They cannot receive anything by law, nor access the reserved share, unless they are voluntarily indicated in the will.
However, if the will has not been updated after the divorce, disputes may arise on the interpretation of the deceased’s wishes. For this reason, those who have experienced a separation or divorce should always review their testamentary dispositions in order to avoid future uncertainties.
Also communion of assets and divorce must be considered separately: the communion is dissolved with personal separation, but the division of assets after marriage can be long and complex. Indeed, assets received as inheritance during the marriage are often not included in the communion, but may become so if used to purchase shared assets.
The situation also changes when it comes to assets that one spouse receives from a relative after divorce: these fall exclusively within their own patrimonial sphere, with no impact on the other former spouse.
How to safeguard your assets and your wishes
Anyone about to divorce should immediately assess the consequences in terms of succession and assets. Reviewing one’s will after divorce is a simple but often neglected step. A clear provision is enough to prevent the former spouse from being reinstated as an unintentional beneficiary or disputes from arising among future heirs.
It is equally important to assess whether there are family assets and to understand how they have been managed over time. This may affect the division of assets after marriage, especially if you are not under a regime of separation of assets.
Finally, for those who have children or specific heirs whom they wish to safeguard, testamentary clarity is essential. In the absence of precise indications, the law will apply general criteria, which may not reflect personal intentions.
In all these situations, relying on a professional competent in matters of inheritance and divorce makes it possible to act with awareness and security, avoiding mistakes or future surprises.
Studio Legale Boschetti, which has been dealing with succession and family law for years, can accompany with discretion those who wish to find their way clearly between separation, estate and testamentary wishes.
