Succession and loss of a legacy: the Court of Cassation, with judgment no. 30135 of 2025, clarifies the calculation of the forced heirship share

Determining the forced heirship share (quota di riserva) due to protected heirs (legittimari) has always been one of the most complex and delicate aspects of succession law in Italy. When a succession opens, the law aims to guarantee close relatives a minimum portion of the deceased's estate, calculated through an accounting operation known as "fictitious collation" (riunione fittizia). But what happens if an asset subject to a legacy perishes or is lost due to a cause not attributable to the legatee before this calculation is performed? The Court of Cassation, with judgment no. 30135 of November 14, 2025, has provided a fundamental clarification on this specific question, outlining the boundaries for calculating the hereditary estate.

The case and the principle of law expressed by the Supreme Court

The dispute brought to the attention of the Supreme Court involved the parties M. S. and G. S. regarding the reconstruction of the hereditary estate and the subsequent reinstatement of the forced heirship share. At the center of the debate was the fate of a bequeathed asset that had been lost without fault on the part of the beneficiary. The Court of Cassation upheld the appeal, quashing the decision of the Court of Appeal of Palermo with remand, and expressed a cardinal principle aimed at preserving equity and the actual reality of the hereditary estate at the time of calculating the forced share.

In the matter of reinstating the share reserved for forced heirs, the loss of an asset subject to a legacy for a non-attributable cause excludes its value from being computed for the purposes of fictitious collation, since, in light of Articles 744 and 562 of the Italian Civil Code, the blameless perishing of the res prevents its valuation for the effects of reinstating the forced heirship share.

This principle is based on a coordinated reading of the Civil Code, expressly referring to the rules on collation (Art. 744 c.c.) and the reduction of donations (Art. 562 c.c.). If an asset no longer exists in the material world due to causes independent of the will or negligence of the person who held it, claiming to compute its theoretical value would mean distorting the actual consistency of the hereditary estate, imposing a fictitious economic burden on one of the parties.

Fictitious collation and the role of Articles 744 and 562 c.c.

To fully understand the scope of judgment no. 30135 of 2025, it is necessary to recall how the fictitious collation under Art. 556 c.c. is structured. This operation involves adding the value of the assets left by the deceased (relictum), minus liabilities, to the value of the assets disposed of during their lifetime through donations (donatum). The purpose is to determine the portion of which the testator could freely dispose and that reserved for the forced heirs.

However, the legislature has provided specific protections for cases where assets have perished without fault:

• Article 744 c.c.: establishes that an asset that has perished due to a cause not attributable to the donee before the opening of the succession is not subject to collation.
• Article 562 c.c.: regulates the loss of a donated asset, providing that if the item has perished due to a cause attributable to the donee or their successors, or if it cannot be recovered, the value is still computed; however, if the perishing is blameless, such value is excluded from the calculation of the forced share.

The Court of Cassation has logically and systematically extended this principle to legacies as well. If a bequeathed asset perishes without fault, it cannot and must not weigh on the determination of the forced heirship share, since the actual estate of the de cuius has objectively diminished without anyone having derived an unjust advantage from it.

Conclusions

Judgment no. 30135 of 2025 represents an important point of reference for legal practitioners and families involved in complex hereditary divisions. It reaffirms the principle of reality in the calculation of forced shares, preventing forced heirs from making claims on purely theoretical values related to assets that no longer exist. Those facing a succession characterized by the loss of bequeathed or donated assets must therefore carefully evaluate the imputability of such loss in order to correctly set up an action for reduction or a legal defense.