What is the reduction action in Italian succession?
Upon the death of a person, the estate of the decedent passes to the heirs. In the absence of a Will, it is the law that establishes who the heirs are and how they divide the inheritance. But even those who make Wills are not always free to decide who inherits their property after death.
In fact, there are some subjects who must legally receive a quota of the inheritance, even if this is against the Will of the deceased.
These subjects are called, “legitimate heirs”, or “forced heirs”, precisely because they have the right to receive a share of the inheritance (articles 536 and following of the Italian civil code). They “forced heirs” are the spouse of the deceased (or registered partner), his/her children and, in the absence of children, his/her parents.
The inheritance reserved share for forced heirs varies according to number of the heirs and their kinship.
For example, case A: the decedent leaves the spouse (or registered partner) and one child, each of them has the right to at least one third of the inheritance (therefore in the Will the decedent can freely dispose of the remaining third part of the assets).
Case B: the decedent leaves the spouse (or registered partner) and two children, each one has the right to at least a quarter of the inheritance (therefore in the Will the decedent can freely dispose of the remaining quarter part of the assets).
The part of the inheritance that is not reserved for the legitimate heirs, and of which therefore, the testator can freely dispose, is called, “ available quota”.
It is clear, therefore, that those who want to make a Will, if they are married (or in a registered partnership) or have children, are subject to a number of limitations, and can freely dispose of only a small part of their assets. The testamentary dispositions that go beyond the available quota can in fact be challenged by the legitimate heirs through the exercise of the reduction action, which returns the assets under consideration to being part of the inheritance (article 554 of the Italian Civil code).
The protection of the rights of the legitimate heirs is complemented by the rule that prohibits the right-holders to renounce the reduction action before the death of the testator (Article 557, second paragraph, of the Italian Civil Code), and the prohibition of inheritance agreements (Article 458 of the Civil Code). Continues >>>