A legacy in lieu of legitimate share requires a choice. If the will assigns you an asset, a sum, or a right “in lieu” of your reserved quota, you cannot normally keep that legacy and also ask for the integration of your legitimate share. You can instead waive it and claim the quota that the law reserves for forced heirs, namely spouse, children, and, in the absence of children, ascendants.
The most immediate question is often economic: is the left asset worth more or less than the reserved quota? But comparing two figures is not enough. The actual meaning of the testamentary clause, the composition of the entire estate, lifetime donations made, and the form of the waiver all matter. In this guide, I want to clarify what changes between accepting the legacy, waiving it, and acting for reduction, so as to make a decision that can decisively affect your succession rights easier to read.
When a legacy is truly in lieu of the legitimate share
Not every bequest in favor of a forced heir is a replacement legacy. A legacy is a specific attribution: it may concern, for example, a specific property, a sum of money, the usufruct of a house, or a credit. A legacy in lieu of legitimate share is one through which the testator intends to satisfy the forced heir through that asset or right, instead of participating in the reserved quota.
The distinction is decisive because Article 551 of the civil code builds an alternative: whoever prefers to obtain the legacy loses the right to ask for a supplement, even if the value of the legacy turns out to be lower than the legitimate share, unless the testator has expressly granted the faculty to ask for such integration. The rules are contained in the current text of the civil code on Normattiva.
The intent emerging from the will as a whole matters. Solemn formulas are not indispensable, but it must unequivocally emerge that the testator wanted to offer that bequest as an alternative to the legitimate share. The Court of Cassation has clarified that, if this intent does not emerge, the legacy may be classified as an attribution “on account” of the legitimate share: in that case, the rigid alternative provided for by Article 551 does not operate automatically. The interpretive criterion is illustrated in the review by the Court of Cassation on ruling no. 30082 of 2019.
What it means to prefer the legacy
The legacy is acquired, as a rule, upon the opening of succession. Article 649 of the civil code provides that the legatee acquires the legacy without the need for acceptance, while retaining the right to waive it. For this reason, in common parlance people often speak of “accepting” the legacy; legally, the point is whether you want to keep its acquisition or waive it to assert the reserved quota.
Keeping the legacy can be a reasonable choice when it attributes an asset you want to keep, when its value is adequate compared to the reserved quota, or when the alternative would entail a dispute over the reconstruction of the estate. The consequence not to be overlooked is the waiver of the supplement. If the replacement bequest is worth less than the legitimate share, this difference does not allow you to automatically demand further assets from the heirs or other beneficiaries.
Furthermore, the replacement legacy does not in itself attribute the quality of heir. The heir steps into the patrimonial position of the deceased within the limits of their call; the legatee instead receives the single asset or right indicated. This difference can affect enforceable claims, relations with other successors, and the requirements necessary to promote an action for reduction.
How to establish if the legitimate share has been infringed
The comparison is not made by looking only at the asset indicated in the will. To understand whether it is convenient to waive the legacy, one must first determine the value of the reserved quota. Article 556 of the civil code requires considering the assets existing at the time of the opening of succession, subtracting estate debts, and fictitiously aggregating donations made by the deceased during their lifetime. “Fictitiously aggregating” does not mean materially taking back donated assets: it serves to calculate the mass upon which the available portion and the reserved quota are determined.
The reserved quota changes based on the forced heirs present. The presence of the spouse, one or more children, or, if there are no children, ascendants modifies the extent of the portions protected by law. A nominal value is not enough. A property may have a market price, but also encumbrances, expenses, liens, a usufruct, or an ownership share that affect the value actually received.
Prior donations are often the fact that changes the result. If the testator transferred money, property, or other assets during their lifetime, such attributions can affect the calculation of the infringement and any potential reduction. It is therefore incorrect to conclude that the legacy is convenient or insufficient by reading only the testamentary clause. The will, the financial situation at death, documentation of donations, and data necessary to estimate the assets are required.
Waiving the legacy to claim the reserved quota
The waiver paves the way for the claim for the legitimate share. Article 551 allows the forced heir who is the recipient of a replacement legacy to waive it and claim the legitimate share. However, the waiver is not equivalent to a simple informal change of mind: it must be consistent with the asset object of the legacy and with acts already performed in the succession.
When the legacy concerns a property, the waiver requires written form. For other legacies, jurisprudence allows that it may also result from unequivocal behavior, i.e., incompatible with the intent to keep the bequest. However, simply filing a generic action for reduction is not enough. The Court of Cassation has specified that such a claim alone may not reveal with certainty the waiver, because it could express the disallowed intent to keep the legacy and also obtain the reserved quota. The waiver can take place in the proceedings before the case is taken under advisement, but it is not prudent to entrust such a significant choice to ambiguous behavior: the principle is recalled in the civil review by the Court of Cassation relating to order no. 13530 of 2022.
Donations already received must be considered when calculating the reserved share. Waiving a replacement legacy is not the same as renouncing the inheritance. If you seek reduction, Article 564 requires gifts and other legacies received to be charged against your share, subject to an express exemption and the statutory limits. Article 551 does not contain a general rule allowing all other benefits to be freely added to the reserved share claimed.
The action for reduction: function and limits
The action for reduction serves to reinstate the infringed reserved quota. It does not annul the entire will simply because a forced heir receives less than they expected. It affects, within the necessary limits, the testamentary provisions and donations that exceed the portion of the estate of which the testator could freely dispose. The goal is to restore the quota reserved by law, not to redistribute the inheritance according to personal preferences.
The claim therefore presupposes two distinct steps: having waived the replacement legacy and demonstrating that, after the calculation of the estate mass, the reserved quota is actually infringed. Not every waiver makes the lawsuit useful. If the legacy is lower than the legitimate share only in appearance, but the overall reconstruction shows that the reserved quota is already satisfied, the action does not achieve the sought integration.
The benefit of inventory is not required in the same way for every claim. Article 564 provides for it when seeking reduction of gifts and legacies benefiting persons not called as co-heirs. This differs from the position of a wholly excluded forced heir, for whom case law does not require prior acceptance with benefit of inventory. Waiving the legacy does not automatically make the legatee an heir: the succession title and defendants must be identified. The distinction is explained in the Court of Cassation’s 2018 civil review.
Two alternatives to compare before deciding
Keeping the specific asset
Keeping the legacy prioritizes the certainty of the indicated attribution. It can be relevant if the asset has a particular utility for you, such as the home you live in, a corporate shareholding, or a usufruct right that produces income. In this option, one must not look only at the possible sale value: the concrete availability of the asset, the expenses it entails, and the limitations connected to the right received also affect it.
The choice, however, requires accepting its essential limit: barring express testamentary faculty for a supplement, the replacement legacy closes the claim to obtain the difference compared to the legitimate share. It is an alternative, not an advance payment. Treating the bequest as an installment and asking for the rest can lead to a position inconsistent with Article 551.
Waiving and asserting the reserved quota
Waiving can be useful if the reserved quota appears significantly infringed. This path allows claiming the reinstatement of the quota protected by law, but does not guarantee obtaining the exact asset desired nor immediately receiving a sum. The result depends on the provisions to be reduced, the assets still present, relevant donations, and the defenses of other involved parties.
Before choosing, it is useful to orderly gather the will, the deeds of provenance of the properties, the necessary property searches, documents relating to donations, and information on the deceased's debts. The decisive datum is the calculation mass. Without a reliable reconstruction, the comparison between legacy and reserved quota risks being merely intuitive and can cause one to lose sight of unrecoverable consequences.
Frequently asked questions
Can I keep the legacy and ask for the difference compared to the legitimate share?
As a rule, no. If the legacy is truly disposed in lieu of legitimate share, whoever chooses to keep it loses the right to the supplement even when its value is lower than the reserved quota. The exception is the testamentary provision that expressly attributes the faculty to ask for integration.
Must I formally accept a legacy in lieu of legitimate share?
The legacy is normally acquired without formal acceptance. The practical issue is whether you intend to keep it or waive it. Acts compatible with the intent to keep it can have relevance, while the waiver requires particular clarity; if the legacy has as its object a property, written form is necessary.
Does waiving the legacy make me an heir?
No, not automatically. The legatee receives a specific attribution and does not acquire the quality of heir for this reason. Waiving the replacement legacy allows claiming the legitimate share, but one must then consider the testamentary call and the possible requirements of the action for reduction, including the benefit of inventory in the foreseen cases.
Can I waive the legacy even after having started a lawsuit?
The sole claim for reduction does not always count as a waiver. The Court of Cassation has admitted that the waiver can take place during the proceedings before the decision, but the acts must unequivocally express the choice not to keep the legacy. For a property, a written act remains necessary.
Do donations received by other heirs count in the calculation?
Yes, they can count in a decisive way. To establish if the legitimate share is infringed, the law requires reconstructing the mass also through the fictitious aggregation of donations. Not every transfer produces the same effect, but ignoring relevant donations can lead to incorrectly evaluating the convenience of the waiver.
A choice to be made with complete data
The decision does not depend only on the value written in an appraisal. Before waiving a replacement legacy or keeping it, one must distinguish the nature of the testamentary provision, determine the reserved quota, and verify the attributions that affect the estate mass. If you have already received the will or must decide how to set up a waiver, you can contact me to examine the choice in light of the documents and the consequences it produces.
For the topic of implicit waiver and the claim for the reserved quota in kind, it may also be useful to consult the review by the Court of Cassation relating to ruling no. 32593 of 2025.