Inheritance Rights and Separation

Dealing with a marital separation is a complex journey, often raising delicate questions about the future. When a bereavement is added to this situation, the issue of inheritance rights can become a source of considerable uncertainty and concern. Understanding the rights of the surviving spouse while a separation judgment is pending is crucial to protecting one's position and acting with awareness. Italian law draws a clear distinction based on a crucial element: whether or not there is an assigned fault in the separation judgment. Relying on an expert lawyer in inheritance law is the first step to clarify matters and protect your interests.

Succession of the Separated Spouse: What the Law Says

Contrary to what one might think, legal separation does not automatically extinguish the inheritance rights of the spouse. According to the Civil Code, the spouse to whom the separation has not been attributed by a final judgment retains the same inheritance rights as an unmarried spouse. This means that, in the absence of a will, they share in the inheritance along with other legal heirs, such as children, and in any case, they are entitled to their statutory share, which is the portion of the estate that the law reserves for them and which cannot be encroached upon even by a different testamentary will of the deceased.

Separation with Fault: A Substantial Difference

The scenario changes radically when the separation has been pronounced with fault. Fault is the declaration by the judge that the end of the marriage is attributable to the behavior of one of the spouses, contrary to marital duties. In this case, the spouse to whom the separation has been attributed loses most of their inheritance rights. They are no longer considered a legal heir and cannot claim rights to the statutory share. The only protection provided by law is the right to a life annuity charged to the estate, but only if, at the time of death, they were receiving alimony from the deceased spouse. This annuity, however, cannot exceed the alimony they received during their lifetime.

The Approach of Studio Legale Bianucci in Milan

Managing an inheritance involving a separated spouse requires a precise and in-depth analysis of the legal situation. The approach of Avv. Marco Bianucci, an expert lawyer in inheritance law in Milan, focuses on a meticulous analysis of the separation judgment to accurately determine the position of the surviving spouse and other heirs. The goal is to provide clear and strategic advice, aimed at protecting the rights of each party involved, whether it is to claim the inheritance share due or to defend the inherited estate from unfounded claims. With consolidated experience in this area, the firm offers comprehensive support to navigate the complexities of inheritance law in the specific context of separation.

Frequently Asked Questions

How much does a spouse separated without fault inherit?

A spouse separated without fault inherits exactly like an unmarried spouse. If there is no will, their share varies depending on the other heirs present: they inherit the entire estate if there are no children, parents, or siblings of the deceased; half of the estate if there is only one child; one-third if there are multiple children. In any case, they are always entitled to their statutory share.

What happens if the separation was my fault?

If the separation was attributed to you by a final judgment, you lose your status as an heir and, consequently, any right to your ex-spouse's succession. The only exception is the possibility of obtaining a life annuity charged to the heirs, but only if, at the time of death, you were receiving an alimony from the deceased.

Can a will exclude a separated spouse from the inheritance?

A will cannot infringe upon the statutory share due to a spouse separated without fault. If the testamentary provisions do not respect this share, the spouse can challenge the will with a specific legal action, called an action for reduction, to obtain what is legally due to them. A spouse at fault, on the other hand, is already excluded from succession by law, so the will does not need to provide anything regarding this.

Is a separated spouse entitled to a survivor's pension?

Yes, a separated spouse is entitled to the deceased's survivor's pension, provided they have not lost the right to maintenance. If the deceased had remarried, the pension is divided between the surviving spouse and the ex-separated spouse based on criteria established by law, primarily the duration of their respective marriages.

Request a Consultation for Your Situation

Succession dynamics in cases of separation are complex and depend on legal details that can make a significant difference. An incorrect assessment of one's position can compromise important financial rights. It is essential to act with the support of competent legal guidance to ensure that every step is correct and protective.

For a clear and professional assessment of your inheritance rights, contact Studio Legale Bianucci. Avv. Marco Bianucci, with consolidated experience in inheritance matters, will provide a detailed analysis of your specific case at the Milan office located at Via Alberto da Giussano, 26.