When, following a succession, you discover that a property, money, or other assets were transferred during the deceased's lifetime, it is natural to wonder whether your inheritance share has been depleted. This doubt becomes even more concrete if the transfer appears to be a gift to a family member or a sale with a price that was not actually paid. However, not every asset that left the estate is "withheld" from the inheritance. It is necessary to understand what operation was carried out, who is entitled to the legitimate share, and whether the total value of the allocations exceeds the portion of the estate that the deceased could freely dispose of.
In this guide, I explain how to navigate between gifts, purely apparent sales, and the reduction action. We will see why the will is not the only important document, how the mass on which the legitimate share is calculated is reconstructed, and what changes if the donated asset was later transferred to a third party. The city of Milan identifies the context of the request, but the applicable rules are those of national civil law.
The legitimate share protects only certain family members
The legitimate share does not belong to just any heir or relative. The civil code reserves a portion of the estate to the spouse, children, and, if there are no children, ascendants. These individuals are the forced heirs: their protection operates even if the deceased left a will and even if, during life, they disposed of assets gratuitously in favor of others. The discipline is contained in articles 536 and following of the Civil Code published on Normattiva.
Being called to the inheritance is not enough. Brothers, sisters, nephews and nieces may inherit without holding a reserved share. The position of descendants who step into a child’s place by representation is different: Article 536 recognizes the rights reserved to that child. The precise family relationship must therefore be identified before ruling out protection of a reserved share.
The measure of the share changes with the composition of the family. The presence of the spouse, one or more children, or the absence of descendants modifies both the reserved portion and the disposable part. For this reason, it is not correct to apply a fixed percentage to every succession. An only child concurring with the spouse, for example, does not have the same share as a child concurring with other siblings or a child inheriting without a surviving spouse.
The calculation does not start solely from the assets left at death
To verify an infringement, a calculation mass is reconstructed. One does not limit oneself to the bank account balance or the properties registered in the deceased's name at the date of death. Articles 556 and following of the civil code require considering existing assets, subtracting debts, and fictitiously adding gifts made during life. This operation is called fictitious reunion: it does not automatically transfer assets into the estate mass, but serves to establish whether the reserved quota has been respected.
The historical value of the act does not always coincide with the useful value in the calculation. For a property, for example, both the condition of the asset at the time of the gift and the value to be attributed according to civil law rules at the time of the opening of the succession count. A renovation carried out by the donee, deterioration, or a mortgage can affect the operation differently. Also for sums of money and corporate shareholdings, it is necessary to distinguish the asset effectively transferred from what was created or modified afterwards.
The deceased's debts affect the distribution first. Mortgages, tax debts, loans, or other truly existing liabilities reduce the net mass on which the disposable and reserved portions are calculated. However, it is not enough to generically indicate that there were debts: they must refer to the deceased and have demonstrable consistency. Similarly, not every outflow of money constitutes a relevant liberal act; an ordinary expense, a due reimbursement, or the payment of a debt do not have the meaning of a gift.
Gift, real sale, and simulated sale are different situations
A gift can infringe the legitimate share even if it was made many years before. If the deceased gave away an apartment, a significant sum, or another asset, the value of the liberality enters into the reconstruction provided for the protection of forced heirs. The gift does not become void just because it reduces the reserved portion: it can be reduced to the extent necessary to reinstate the infringed forced heir.
An actual sale is not a gift simply because it takes place between family members. The owner can sell an asset and freely use the consideration. If the price is real, agreed upon, and paid, the asset does not fall by itself into the mass of gifts. The circumstance that the price is lower than a subsequent estimate deserves attention, but does not automatically transform the contract into a gratuitous act.
When a sale may conceal a liberal act
Simulation concerns the real intent of the parties. Article 1414 of the civil code governs the simulated contract and any agreement that the parties actually intended. A sale may be merely apparent if the seller and buyer declared a price without truly wanting the exchange, or if behind the onerous act they wanted to dissimulate a gift. The decisive fact is not suspicion, but the existence of elements consistent with the absence of true payment.
Money movements can be decisive. Bank transfers, checks, withdrawals, receipts, the buyer's economic availability, and documents connected to the act help understand whether the price was paid. Subsequent behavior may also have relevance, but must be read with caution: someone who continues to live in the transferred property, for example, does not prove by themselves that the sale is fictitious. Proof of simulation and the reconstruction of liberality are connected issues, but not identical.
Indirect donation requires independent analysis. A gratuitous attribution realized through an operation different from a notary gift may also assume relevance, provided the enrichment of a person and the liberal intent of the person bearing the cost emerge. Paying the purchase price of an asset registered in a child's name is a possible example. However, it is not sufficient for a parent to economically help a family member: it is necessary to distinguish due help, a loan to be returned, and gratuitous attribution.
The reduction action reinstates the share, it does not cancel every choice of the deceased
The reduction action serves to bring allocations back within the limit of the disposable portion. Articles 554 and 555 of the Civil Code allow the infringed forced heir to request the reduction of testamentary dispositions and gifts that exceed the freely attributable part. The result is not a new division built according to personal preferences: the protection aims to integrate the reserved share to the extent it is infringed.
The order of reductions is established by law. Testamentary dispositions are reduced before gifts; if it is necessary to act on gifts, their temporal order is relevant, generally starting from the most recent one. This criterion, provided by articles 555 and following of the civil code, avoids indiscriminately striking every transfer. A more distant gift can therefore remain untouched if subsequent ones are sufficient to reconstitute the share.
The claim belongs to the infringed forced heir. Article 557 identifies the subjects legitimized to request the reduction. In some cases, the law requires that the forced heir acting as an heir has accepted with benefit of inventory, barring exceptions provided when allocations to be reduced are in favor of co-heirs. The benefit of inventory separates the inheritance estate from the personal estate of the heir and formally identifies assets and liabilities of the inheritance. Its necessity must neither be taken for granted nor excluded in the abstract.
Negotiation can avoid a lawsuit, but must respect the starting data. The people involved can reach an agreement on the reconstruction of the estate, the value of the assets, and the allocations necessary to rebalance the shares. A useful agreement, however, does not arise solely from the desire to close quickly: it must clarify which gifts or dispositions are considered, what value is attributed to them, and what waiver or transfer each undertakes. If agreement is lacking, the judicial claim must be framed consistently with the reconstruction of the mass.
If the donated asset was sold to third parties, the date of opening of the succession counts
Since 18 December 2025, the discipline of assets coming from donation has changed. Article 44 of law no. 182 of 2 December 2025 amended articles 561, 562, 563, 2652, and 2690 of the civil code. For successions opened from that date, the reduction of the gift does not as a rule prejudice the third party to whom the donee alienated the property; the donee's obligation remains to compensate the forced heir in money within what is necessary to integrate the reserve. The reform is reported in law no. 182 of 2025 published in the Official Gazette.
The protection of the third party does not eliminate all economic protection. If the donee is insolvent, the gratuitous title transferee may be required to compensate the forced heir within the advantage received. The rule does not equate to saying that anyone who buys a donated asset is always extraneous to the controversy: it is necessary to distinguish onerous purchase from gratuitous purchase, verify transcriptions, and apply the exceptions recalled by the new text of article 563.
Successions opened before 18 December 2025 have a decisive transitional discipline. The law initially maintains the previous text, but required specific acts within six months from entry into force to preserve, in provided cases, the possibility of acting also against successors from the donee. As of 21 September 2026, that semester has passed. Therefore, if the succession precedes the reform and the asset was meanwhile alienated, it is essential to ascertain whether a reduction claim or an opposition act to the gift were notified and transcribed within the terms established by the transitional rule.
Transcription is not a secondary formality. For properties, it makes the claim knowable in the registers and can affect effects towards subsequent buyers. Law no. 182 of 2025 also provided, for infringing testamentary dispositions, specific protection of third-party onerous buyers when the claim is transcribed over three years from the opening of the succession. The date of death, the date of the act, and the sequence of transcriptions can therefore radically change the practical effect of the same infringement.
Facts to start from to understand if real protection exists
The first useful data is the snapshot of the estate at the date of death. Information is needed on remaining assets, debts, and testamentary dispositions. Immediately after come gifts and sales acts performed during life: date, beneficiary, transferred asset, declared price, and payment methods. It is not necessary to collect documents without criteria; it is useful to identify acts that truly modify the mass on which to calculate the reserve.
The second data is the position of the person seeking protection. It must be established whether they are a child, spouse, or ascendant of the deceased, whether they have accepted the inheritance, and against whom any potential claim would be directed. Acting against a co-heir who received a gift, against a stranger beneficiary of a legacy, or against someone who subsequently bought a property from the donee changes things significantly.
The third data is time. It is not enough to know that a property was donated or sold: the date of opening of the succession, the period of the act, any subsequent transfers, and formalities already performed count. In particular, successions opened before 18 December 2025 require careful verification of the transitional rules introduced by law no. 182 of 2025. An informal letter or dissent expressed within the family does not substitute acts for which the law requires notification and transcription.
Frequently Asked Questions
Can I contest a gift made many years before death?
Yes, a distant gift can be relevant. In calculating the legitimate share, gifts made during life are considered together with remaining assets and the deceased's debts. However, this does not mean every gift must be returned: it must first be ascertained whether, with that value, your reserved quota is effectively infringed.
Does a low-price sale automatically equate to a gift?
No, a low price is not enough. A sale remains such if the parties wanted a true exchange and the price was truly paid. It may instead be necessary to investigate whether the act is simulated or contains a liberal component. Proof of payments and the concrete content of the operation are more important than just the difference compared to an estimate.
Can I request the restitution of the property from someone who bought it from the donee?
It depends mostly on the date of opening of the succession. For those opened from 18 December 2025, the new discipline generally protects the third-party buyer and focuses compensation on the donee. For prior successions, transitional discipline must be verified, including judicial claims, gift opposition, and relative transcriptions.
Must the will be annulled to obtain the legitimate share?
Not necessarily. If the problem is that the will and gifts exceed the disposable part, the typical instrument is the reduction action. It reduces allocations to the extent necessary to reinstate the reserve; it is different from actions contesting formal validity or the capacity of the person who drafted the will.
Must I accept the inheritance with benefit of inventory?
In some cases, it can be a necessary condition. Article 564 of the civil code provides this rule for the forced heir acting as an heir, with relevant exceptions, particularly regarding allocations to co-heirs. It is not wise to decide based on a general formula: one must distinguish who is acting, what they are asking for, and against which subject the claim is directed.
Orienting yourself before choosing the path to follow
Protecting the legitimate share requires a calculation before a contestation. Gift, simulated sale, indirect liberality, and testamentary disposition can produce different effects while giving the same impression of a depleted estate. If you need to clarify a succession in Milan, you can contact me: together with my staff, we can frame relevant acts, the position of forced heirs, and the incidence of applicable transitional rules.