Forced Heirship in Italy

in KGC Reid, MJ de Waal and R Zimmermann (eds), Comparative Succession Law, volume 3. Mandatory Family Protection (OUP 2020) 108-138.

Edinburgh School of Law Research Paper No. 2020/24

34 Pages Posted: 7 Dec 2020

See all articles by Alexandra Braun

Alexandra Braun

School of Law, University of Edinburgh

Date Written: October 23, 2020

Abstract

Civil-law systems do not generally grant testamentary freedom without limitations. Often, the most significant constraints on the freedom to dispose of assets on death derive from legislative provisions that protect the interests of close family members by way of a forced share, even against the wishes of the deceased. These restrictions can be more or less extensive. In the case of Italy, they are significant, both in terms of how little the testator can sometimes freely dispose of, whether on death or during her lifetime, and in terms of the limited degree of autonomy with which she can modify or reduce the forced share in the estate and enter into agreements with those entitled to a forced share. This chapter provides an historical overview of forced heirship in Italy and examines its main features as well as the mechanisms that are in place to protect forced shares. It evaluates the various proposals to reform forced heirship, including proposals to abolish forced heirship altogether, none of which have been implemented. It argues that Italian law in this area is in an unsatisfactory state, for not only do forced heirship provisions impinge on a person’s freedom of testation and her freedom to make gratuitous transfers during her lifetime, they also affect the interests of donees and other third parties, ultimately hampering the free movement of goods. What is more, the provisions that are in place, including those on the calculation of the forced share and on anti-avoidance, are of considerable complexity. A reform of the area is therefore highly desirable.

Keywords: Forced heirship, testamentary freedom, Italian law, testamentary dispositions, gifts, claw-back

Suggested Citation

Braun, Alexandra, Forced Heirship in Italy (October 23, 2020). in KGC Reid, MJ de Waal and R Zimmermann (eds), Comparative Succession Law, volume 3. Mandatory Family Protection (OUP 2020) 108-138., Edinburgh School of Law Research Paper No. 2020/24, Available at SSRN: https://ssrn.com/abstract=3717537

Alexandra Braun (Contact Author)

School of Law, University of Edinburgh ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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