The Divisio Inter Liberos: Analysis of Ordinance No. 9888 of 2024

The issue of hereditary division continues to hold central importance in family law, especially in light of recent judicial pronouncements. Ordinance No. 9888 of April 11, 2024, issued by the Court of Cassation, specifically addresses the concept of divisio inter liberos, clarifying its requirements and operation in relation to Articles 733 and 734 of the Italian Civil Code.

Definition of Divisio Inter Liberos

According to the principle expressed in the ruling,

Divisio Inter Liberos - Configurability - Requirements - Difference from the hypothesis under Article 733 of the Civil Code. The so-called divisio inter liberos, governed by Article 734 of the Civil Code, occurs when the testator intends to directly effect the total or partial division of their assets among the heirs, by forming shares and identifying the assets for each of them, thus preventing the emergence of hereditary co-ownership. In contrast, under the hypothesis of Article 733 of the Civil Code, the testator does not divide their assets but merely lays down the rules for future division, which are binding on the heirs.

This definition highlights how divisio inter liberos can prevent the creation of hereditary co-ownership, allowing the testator to clearly assign specific assets and shares to each heir.

Requirements and Differences from Article 733 of the Civil Code

To fully understand the scope of divisio inter liberos, it is essential to analyze its requirements. This form of hereditary division requires the testator to make precise and detailed provisions regarding the assets to be assigned and the shares to be allocated to each heir. This avoids situations of uncertainty or conflict among the heirs, as everything is clearly and bindingly established.

• The testator must explicitly indicate the assets to be assigned;
• They must define the shares due to each heir;
• They must prevent the creation of hereditary co-ownership.

Conversely, Article 733 of the Civil Code provides that the testator does not carry out an immediate division but merely establishes rules for a future division. This approach can lead to greater uncertainty and potential disputes among heirs, as there is no clear assignment of assets.

Conclusions

Ordinance No. 9888 of 2024 offers an important opportunity to reflect on the management of successions and the importance of adequate estate planning. The divisio inter liberos represents an effective solution for avoiding conflicts among heirs and ensuring a clear and fair distribution of assets. It is crucial for testators to be aware of the differences between these two forms of hereditary division to make informed decisions and best fulfill the wishes expressed in their will.