Succession law and marital status

The Italian Law of Succession is applied differently according to the different circumstances of marriage, communion of assets or cohabitation.

Couples married under the communion of assets: at the death of one of the spouses, the surviving spouse inherits the undivided half of all assets included in the union of marriage.  Any gift of inheritance that has been received during the course of the marriage is excluded from the assets.

Couples married under regime of separation of assets: only assets in the name of the deceased are taken into account.  Should the property of residence be in the name of both spouses (with no children) it will be inherited at 50%.  A house bought solely by the deceased in his/her sole name will be inherited at 100% by the surviving spouse.  The bank accounts if not in the name of both spouses, will be inherited at 100% by the surviving spouse.

Couples married but under regime of separation by mutual consent: in case of mutual consent, the surviving spouse keeps all the rights over assets considered part of the succession.

Couples married but under judicial separation: should the spouse considered liable for the separation be granted a monthly maintenance payment by the courts at time of the legal separation (pursuant to art. 548, par. 2 of the Italian Civil Code), he/she will be entitled to retain a lifelong monthly payment as long as there is no change in the economic circumstances of the surviving spouse and only if the inheritance assets are sufficient to guarantee this lifelong payment.

Divorce: in case of divorce, the surviving spouse loses all rights to inheritance, but the Decree Absolute must have already been issued prior to the death of a spouse.

Cohabitation/ Common-law Partnership and same-sex marriages: unfortunately Italy does not recognize any rights for unmarried or gay partners. Therefore they can only inherit in cases of a testamentary succession and for the available quota reserved by the Law.

It is better to avoid complicated situations especially as the matter of death and inheritance is such a sensitive issue.  It is essential for partners to draft a Will in order to clearly express their wishes and avoid difficult circumstances for the surviving partner who will not be recognized as an heir under Italian law.