Children's Right to the Legitimate Share

The loss of a parent is an emotionally complex time, often bringing with it delicate financial matters. One of the most frequent doubts concerns the division of assets and the protection of one's inheritance rights. In Italy, the law offers very strong protection to descendants through the institution of the legitimate share. As a succession lawyer operating in Milan, Avv. Marco Bianucci understands how crucial it is to have immediate clarity on what is legally due to children, to avoid family conflicts or to resolve them with the right legal awareness.

What is the Legitimate Share and How Does it Work

Our legal system establishes that a portion of the deceased's estate must necessarily be reserved for certain individuals, known as forced heirs, among whom children are prominent. This portion is untouchable: the parent cannot deprive their children of it, neither through a will nor through lifetime gifts. The inheritance estate is therefore divided into two parts: the disposable portion, which the testator can freely dispose of, and the legitimate share, legally reserved for necessary heirs.

How to Calculate the Share Due to Children

The exact determination of the share varies based on the composition of the family unit at the time of the succession opening. It is essential to distinguish the different scenarios provided for by the Civil Code:

If the parent leaves only one child (without a spouse), half of the estate (50%) is due to them. The other half is the disposable portion. If there are more than one child (without a spouse), two-thirds of the estate is reserved for them, to be divided equally. If the spouse also participates, the shares vary: with one child and the spouse, each is entitled to one-third; with more than one child and the spouse, the spouse is entitled to one-quarter and the children to one-half collectively.

The Action for Reduction: How to Protect Your Rights

When a will or past gifts infringe upon the legitimate share, the child has the right to take legal action to recover their portion. The primary tool is the action for reduction. This procedure aims to render ineffective testamentary dispositions or gifts that have encroached upon the legitimate share, reducing them until the legally due share is reconstituted. It is a technical proceeding that requires precise calculation of the inheritance mass, which is obtained by summing the value of the assets left at death (relictum), subtracting debts, and fictitiously adding the value of assets gifted during life (donatum).

The Approach of Studio Legale Bianucci in Successions

Dealing with an inheritance dispute requires not only technical expertise but also a strategic vision aimed at preserving family relationships where possible, or at least resolving the dispute within a reasonable timeframe. Avv. Marco Bianucci, as an expert lawyer in succession law in Milan, adopts an analytical and personalized work method. Each case begins with a meticulous reconstruction of the inheritance estate, analyzing not only the will but also the history of gifts and property transfers that have occurred over the years.

The firm's objective is, in the first instance, to attempt an out-of-court resolution through mediation, explaining to the parties involved the risks and costs of lengthy litigation. However, should the other party prove uncooperative, the firm is prepared to defend the client's rights in court with firmness and preparation. The experience gained allows for the identification of even the less obvious infringements of the legitimate share, such as those arising from indirect gifts or simulated sales.

Frequently Asked Questions

Can a parent disinherit a child?

No, in the Italian legal system, it is not possible to totally disinherit a child, except in very serious and specific cases of unworthiness to succeed as provided by law. The child always has the right to their legitimate share, regardless of the will's expressed wishes.

How is the value of the inheritance for the legitimate share calculated?

The calculation is made through fictional aggregation: the value of the assets left at the time of death is taken, hereditary debts are subtracted, and the value of gifts made by the deceased during their lifetime is added. The legitimate shares are calculated on this total sum.

Within what time frame can a will be challenged for infringement of the legitimate share?

The action for reduction for infringement of the legitimate share is subject to the ordinary ten-year statute of limitations. The term generally runs from the date of acceptance of the inheritance by the heir who benefited from the infringing disposition.

Are gifts made during life included in the inheritance?

Yes, gifts are considered an advance on the succession. If a parent has gifted real estate or money to a child (or to third parties) during their lifetime, these values must be considered to verify whether the legitimate share of other heirs has been respected.

Request an Assessment of Your Case

If you believe your legitimate share has been infringed or you have doubts about the distribution of the inheritance, it is crucial to act promptly and precisely. Contact Avv. Marco Bianucci for an in-depth assessment of your situation. The firm, located at Via Alberto da Giussano 26 in Milan, is at your disposal to analyze the documentation and define the most effective strategy to protect your inheritance interests.