The reserved share. The rules.

Can a parent transfer all of his or her assets to one child only, excluding the others? Plainly not. The law allows children to whom the parent has left nothing by way of inheritance to challenge that parent’s wishes if, in disposing of his or her assets, the parent has not respected the so-called reserved share (quota di legittima). Let us see why. If it is true that a parent, while alive, has a wide power to dispose of his or her assets, it is also true that children who have been excluded from those dispositions may not give up their rights. Let us see how. Forced heirs (legittimari) are those who, on a person’s death, are entitled to a share of that person’s estate, even against the deceased’s wishes. The forced heirs are the wife, descendants in the direct line (first the children and, in their absence, the grandchildren) and ascendants in the direct line (first the parents and, in their absence, the grandparents).

This is how the reserved shares are divided among them: if there is only one child, that child is entitled to 1/2 of the deceased’s estate; if there is more than one child, they are together entitled to 2/3, obviously divided equally among them; if there are only ascendants, they are entitled to 1/3; if there is only the spouse, the spouse is entitled to 1/2; if there are the spouse and one child, each is entitled to 1/3; if there are the spouse and more than one child, the spouse is entitled to 1/4 and the children to 1/2; if there are the spouse and the ascendants, without children, the spouse is entitled to 1/2 and the ascendants to 1/4. The children therefore compete only with the spouse, if living at the time of the deceased’s death, and exclude all other relatives. The share that remains “free” is called the disposable portion: it is the portion of which the deceased could freely have disposed, by gift or by will.

Let us take an example. Tizio dies, leaving a wife and two children. The children will together be entitled to 1/2 of the estate: therefore 1/4 each. The wife will be entitled to 1/4. A share of 1/4 remains free, which is the disposable portion, the share which the deceased could have destined to whomever he wished. To calculate the disposable portion exactly, the estate must first be established, consisting of the assets the deceased left at death, plus the value of any gifts made during life (so-called fictitious reunion). From that value one then subtracts the value corresponding to the shares due to the forced heirs; what remains is the disposable portion. If, making that subtraction, it appears that the deceased disposed of his assets beyond the disposable portion, by gifts or testamentary dispositions in favour of persons other than the forced heirs, there is an infringement of the reserved share.

Let us see, in practice, how this rule works. Returning to the previous example, Tizio leaves an estate worth 100. During his life he made gifts of 60. To calculate the disposable portion, what remains is added to what was given: therefore 100 + 60 = 160. We have said that Tizio leaves a wife and two children. Since, as we have seen, the disposable portion is 1/4, it will correspond to 40 (1/4 of 160 = 40). Tizio could therefore have made gifts up to a value of 40: by going beyond that, he encroached on the disposable portion and infringed the reserved share. The remedy available to the forced heirs is called the action for reduction, which may be followed by the action for recovery of the inheritance. The forced heir may therefore apply to the competent court for a declaration that the testamentary dispositions or gifts are ineffective, in order to restore the reserved share due to him or her. He or she must, of course, prove the quality of forced heir and the fact that the gifts or testamentary dispositions have infringed the reserved share. If the gift, or gifts, were made by the device of an indirect gift or of simulation, that must be proved. The court will therefore take into account the testamentary dispositions and the gifts made by the deceased during life in order to restore the reserved share. The consequence is that acts infringing the reserved share will be declared ineffective by the court. The action may also be brought by the successors in title of the forced heirs (for example, if the person entitled has died, by the children or grandchildren). The action is prescribed in ten years, running: - if the infringement was caused by a gift, from the day the succession opened. That coincides, in substance, with the date of the deceased’s death; - if it was caused by a testamentary disposition, from acceptance of the inheritance.

This is because, on the deceased’s death, the persons who should be his or her heirs, by law or by will, have not yet acquired that quality. They are “called” to the inheritance; they become heirs only by acceptance, express or tacit. Becoming a person’s heir means acquiring not only that person’s wealth but also, if there are any, the debts.

For further information, contact Studio Legale LTC.