Infringement of the Legitimate Share
Discovering that a will or lifetime gifts made by a loved one may have compromised the inheritance share legally reserved for you is a complex and delicate situation. Often, a moment of grief is compounded by a sense of injustice and worry about one's future. Understanding your rights is the crucial first step to acting with informed awareness and protecting what is rightfully yours. Italian law, in fact, provides specific protection for close relatives, guaranteeing them a portion of the deceased's estate, known as the legitimate share. When this share is violated, precise legal instruments exist to restore your rights. As an attorney experienced in succession law in Milan, Avv. Marco Bianucci handles these matters with the utmost expertise and sensitivity, analyzing every detail to define the most effective strategy.
The Regulatory Context: What is the Legitimate Share?
The Italian Civil Code establishes that a part of a person's estate, defined as the 'disposable share', can be freely allocated through a will. Another part, the 'legitimate share' or 'reserve', must instead be mandatorily devolved to specific family members, known as heirs with reserved share. These individuals are the spouse (or civilly partnered person), children, and, in the absence of children, ascendants. The law thus intends to protect the closest family ties, ensuring they are not unjustly excluded from the inheritance. Infringement of the legitimate share occurs when testamentary dispositions or lifetime gifts made by the deceased exceed the disposable share, encroaching upon the portion of the estate legally reserved for heirs with reserved share.
How is the Legitimate Share Calculated?
To determine if an infringement has occurred, a accounting operation called fictitious aggregation is necessary. This is a calculation that reconstructs the entire inheritance estate at the time of death, summing the value of the assets left by the deceased (the so-called 'relictum') with the value of lifetime gifts ('donatum'), net of debts. The disposable share and the reserved share due to each heir with reserved share are then calculated on this reconstructed estate. If an heir with reserved share has received, through a will or gifts, less than what is legally due to them, they can take legal action to recover their share. This is a technical analysis that requires precision and a deep knowledge of the subject matter.
The Approach of Studio Legale Bianucci
Addressing an issue of infringement of the legitimate share requires a strategic and personalized approach. The approach of Avv. Marco Bianucci, an attorney experienced in succession law in Milan, is based on a thorough preliminary analysis aimed at verifying the actual existence of the infringement and the advisability of undertaking legal action. The first step involves the detailed reconstruction of the deceased's estate through the examination of real estate, banking, and tax documents. Subsequently, the exact calculation of the shares is carried out to quantify the infringement. Only at this point, after sharing a clear picture of the situation and the possible courses of action with the client, is the initiation of the action for reduction considered, the legal tool that allows for the invalidation of testamentary dispositions and infringing gifts, up to the restoration of the violated legitimate share.
Frequently Asked Questions
How much time do I have to act if my legitimate share has been infringed?
The right to act with the action for reduction is subject to a ten-year statute of limitations. The starting point of the term can vary depending on whether the infringement arises from testamentary provisions or from gifts. Generally, for testamentary infringements, the term runs from the date of acceptance of the inheritance by the beneficiary of the infringing provision. Given the complexity in determining the exact starting moment, it is crucial to consult a lawyer promptly.
What exactly does 'action for reduction' mean?
The action for reduction is a judicial action by which an heir with reserved share asks the judge to declare the ineffectiveness of testamentary provisions or gifts that have infringed their reserved share. The objective is to restore the legally due share. Action is taken first against the provisions of the will and, if insufficient, against gifts, starting from the most recent one made in chronological order and working backward to earlier ones.
Can lifetime gifts made by the deceased be contested?
Yes, gifts are one of the most frequent causes of infringement of the legitimate share. The law considers them as an advance on the inheritance. If the total value of the gifts, added to what is provided in the will, encroaches upon the share reserved for heirs with reserved share, these can be subject to the action for reduction to be rendered ineffective and allow the heir with reserved share to obtain what is due to them.
What are the first steps to take to protect my inheritance?
The first step is to gather all possible documentation related to the deceased's estate, such as the will (if any), deeds of gift, cadastral records, bank statements. Subsequently, it is essential to contact a lawyer with experience in succession matters for a comprehensive assessment of the case. A professional will be able to analyze the situation, calculate the shares, and advise on the best strategy for protecting your rights.
Contact the Firm for an Assessment of Your Case
If you believe your inheritance rights have been violated and wish to understand how to protect your legitimate share, it is essential to seek competent legal guidance. Avv. Marco Bianucci offers legal consultation and assistance for all matters related to succession law. Contacting the law firm, located in Milan at via Alberto da Giussano 26, allows you to receive a clear and in-depth analysis of your situation, to calmly evaluate the steps to take and embark on the most appropriate path to protect your interests.