Succession Planning and Testamentary Freedom

When deciding to plan the future of one's assets, the desire often arises to benefit individuals who do not fall within the narrow circle of immediate family members, such as a cohabiting partner (more uxorio), a dear friend, or a charitable organization. However, the Italian legal system imposes precise limits on testamentary freedom to protect close relatives. As an expert lawyer in succession law in Milan, Avv. Marco Bianucci frequently meets clients who fear their last wishes may be contested due to errors in the distribution of assets. Understanding the distinction between the disposable portion and the reserved portion (quota di legittima) is the first fundamental step in drafting a solid will that respects the law and ensures one's decisions are executed without creating future family conflicts.

The Regulatory Framework: Reserved Portion and Disposable Portion

Our legal system stipulates that a portion of the deceased's estate, defined as the reserved portion or statutory share (quota di legittima), must necessarily be allocated to so-called statutory heirs (legittimari), namely the spouse, children, and, in the absence of children, ascendants. This protection is strong and cannot be circumvented, even through a contrary will. The remaining part of the estate, which the testator can freely dispose of in favor of anyone, is known as the disposable portion (quota disponibile). The extent of this portion is not fixed but varies based on the composition of the family unit at the time of the succession's opening. For example, in the presence of only one child, the disposable portion is larger than in the case of a spouse and multiple children. It is essential to calculate these portions not only on the assets left at death (relictum) but also on what was donated during life (donatum), through a complex accounting operation called fictitious aggregation (riunione fittizia).

The Approach of Studio Legale Bianucci to Estate Planning

The approach of Avv. Marco Bianucci, an expert lawyer in succession law in Milan, is distinguished by a preventive and meticulous analysis of the client's asset and family situation. We do not merely transcribe wishes into a formal document; instead, we perform a precise simulation of the portions to verify that the desired provisions fall within the disposable portion. The firm's strategy aims to preempt actions for reduction (azioni di riduzione) at the outset, which are legal proceedings that statutory heirs might initiate if they feel their rights have been infringed. We work closely with the client to identify legal instruments that are alternative or complementary to a will, such as donations or insurance policies, always within the limits of the law, to maximize the freedom to dispose of one's assets. The goal is to ensure the testator's peace of mind and the stability of future asset transfers.

Frequently Asked Questions

Can I leave my entire estate to my partner if I have children?

It is not possible to leave the entire estate to a partner if one has children, as the latter are statutory heirs and are legally entitled to a reserved portion. If the will assigns everything to the partner, the children can contest it by exercising the action for reduction to obtain their rightful share. However, it is possible to leave the entire disposable portion to the partner, thus maximizing the bequest in their favor without encroaching on the children's statutory share. An accurate analysis with a professional allows for the precise quantification of this portion.

What happens if lifetime donations exceed the disposable portion?

Donations made during life are considered an advance on inheritance and are included in the calculation of the total estate mass. If the value of donations, added to what is left by will, exceeds the disposable portion and infringes upon the statutory share of necessary heirs, these donations can be challenged. Aggrieved statutory heirs can take legal action to request the reduction of donations, starting from the most recent and working backward to earlier ones, until their share is reinstated. It is therefore crucial to monitor lifetime gifts to avoid future legal disputes.

Is it possible to disinherit a close relative?

In the Italian legal system, the disinheritance of a statutory heir (spouse, children, ascendants) is permissible only in very serious cases strictly provided for by law, defined as cases of unworthiness to succeed (e.g., serious crimes against the deceased). Outside of these exceptional circumstances, it is not possible to completely exclude a statutory heir from the succession simply by the testator's will. However, Avv. Marco Bianucci can advise on strategies to limit the bequest to the legal minimum (the statutory share only), allocating the entire disposable portion to other individuals.

Request a Succession Consultation in Milan

Drafting a will requires technical expertise and a comprehensive vision to prevent one's wishes from becoming a source of disputes. If you wish to plan your succession or understand how to manage the disposable portion, contact Studio Legale Bianucci. We receive by appointment at our Milan office located at Via Alberto da Giussano, 26. Avv. Marco Bianucci will evaluate your specific case to offer you the most secure solution that aligns with your desires.