Inheritance shares with and without a will in Italy

In the case in which the deceased has not drafted a will for their last wishes, the rules of legitimate succession provided for by the Italian Codice civile apply. The inheritance shares without a will depend on the presence or otherwise of spouse, children, brothers or other relatives within the sixth degree.

Wishing to schematise the cases, the main situations that can occur are:

• Spouse and children: in the presence of spouse and one or more children, the patrimony of the deceased is divided 1/3 to the spouse, 2/3 to the children to be divided in equal parts;
• Spouse and brothers: if there are no children, but only brothers or sisters of the deceased, the surviving spouse has the right to 2/3 of the patrimony, while the remaining third is divided among brothers;
• Only children: if there is no surviving spouse, the patrimony is divided among children in equal parts;
• Ascendants, brothers and sisters: if the deceased has no spouse, nor children, the inheritance is divided between the parents (or other ascendants) and the brothers/sisters;
• Absence of spouse, children and ascendants: if there are no relatives up to the sixth degree, the inheritance is devolved to the State.

In case of legitimate succession, when the deceased leaves a spouse but no children, Italian law provides that the patrimony be divided in the following way:

• 2/3 of the inheritance to the spouse;
• 1/3 is divided between brothers and sisters.

In case of testamentary succession, the testator has the freedom to dispose of the available share which represents half of the patrimony, while the share of forced heirship that protects forced heirs remains guaranteed. Therefore:

• The spouse is entitled to half of the patrimony as forced heirship share;
• The remaining 50% is available to be assigned to brothers or other beneficiaries at the discretion of the testator.
• 1/3 of the inheritance to the spouse;
• 2/3 to the children, to be divided in equal parts.
• In case of testamentary succession, the testator has the freedom to dispose of the available share, while remaining bound to the share of forced heirship that protects forced heirs as an unavailable share. Therefore:
• The forced heirship share of the children is equal to ½ of the entire patrimony, to be divided in equal parts between the two children;
• The spouse is entitled to ¼ of the patrimony as forced heirship share;
• The remaining ¼ represents the available share that the testator can dispose of freely.

In the case in which the deceased has no relatives within the sixth degree and there is no will with which they have disposed of their last wishes, Italian law provides that the entire patrimony be devolved to the State. Doctrine in fact qualifies succession as a necessary phenomenon, since the legal system establishes that at the death of a person an heir must always take over.

The phenomenon of inheritance succession has as its main purpose to transfer the assets of the deceased to their heirs, dividing them based on the shares pertaining to each. However, it is important to know that there are also these situations in which such particular event occurs, for which the inheritance patrimony remains without heirs: this situation is defined as “vacant inheritance”.

In these cases, it is fundamental to consider the possibility of turning to Boschetti Studio Legale to avoid the patrimony ending up to the State. A will, even simple, can ensure that one’s assets are destined to persons or entities chosen by the testator, thus avoiding acquisition by the State. If you do not have a clear idea on how to draft a will, consulting our team of lawyers is the first step to avoid future complications.

One therefore wonders, to whom does the inheritance go in the absence of heirs? During a succession by cause of death, it can happen that the Italian State becomes the last recipient of the patrimony, acquiring its ownership: this happens precisely in the case of vacant inheritance.

Rely on Boschetti Studio Legale to understand all the possible alternatives that exist by law, in order to prevent the inheritance from becoming vacant. We help you to assess whether there are distant heirs or whether it is preferable to allocate one’s assets to charitable entities or other persons, or to create instruments such as trusts, which allow managing and distributing the patrimony flexibly even in the absence of direct heirs.

In which cases does this situation occur?

The inheritance is acquired by the State when the following conditions occur:

• all possible heirs do not accept the inheritance within the terms or expressly renounce it;
• the deceased has not left a will and there are no heirs within the sixth degree of kinship still alive.

Examples of vacant inheritance:

• Tizio has no wife, children or other relatives up to the sixth degree, since all are deceased. If they have not arranged a will in favour of other beneficiaries, their inheritance will be considered vacant and will be acquired by the Italian State.
• Mevio has neither wife nor children, and all their relatives up to the sixth degree have refused the inheritance or have not accepted it within the terms. In the absence of a will, their inheritance will also be considered vacant and devolved to the State.
• Sempronio has wife and children, who formally renounce the inheritance, and no other relative up to the sixth degree accepts the inheritance or expressly renounces it. Not having prepared a will, their inheritance will be declared vacant and will go to the State.

The reasons why this happens can be multiple, but the requirements always remain the same: the absence of testamentary or legitimate heirs, the renunciation of the inheritance or the lapsing of the right to accept it.