Protection of the Legitimate Share in Testamentary Successions

Managing an inheritance is often a delicate moment, where grief for loss intertwines with complex financial and family matters. When faced with a will that appears to infringe upon one's rights, it is crucial to understand how Italian law protects close relatives. As an attorney specializing in succession law in Milan, Avv. Marco Bianucci assists clients daily who need to verify the correctness of testamentary provisions and protect their reserved share. Understanding the mechanisms of necessary succession is the first step to ensuring that the deceased's wishes are respected within the limits imposed by the legal system.

What the Law Provides: Disposable Share and Reserved Share

Our legal system does not grant the testator absolute freedom in disposing of their assets. The Civil Code establishes that a portion of the inheritance, defined as the legitimate share or reserved share, must necessarily be devolved to the so-called forced heirs: the spouse, children, and, in the absence of children, ascendants. The remaining portion, which the testator can freely dispose of in favor of anyone, is called the disposable share. Infringement of the legitimate share occurs when, through testamentary provisions or lifetime donations, the deceased has deprived a forced heir of the portion legally due to them. It is important to note that the calculation is not based solely on what was left at the time of death, but requires a complex accounting operation that also includes what was donated previously.

Calculation of the Estate Mass and Fictitious Reunion

To determine if the rights of the forced heirs have been infringed, it is necessary to proceed with the so-called fictitious reunion. This operation consists of calculating the value of the assets belonging to the deceased at the time of death (relictum), deducting hereditary debts, and fictitiously adding the value of assets donated during life (donatum). Only on this basis can the extent of the disposable share and the legitimate shares be mathematically determined. Errors in this phase can compromise the outcome of any legal action, which is why rigorous technical analysis is essential.

The Bianucci Law Firm's Approach to Inheritance Protection

Avv. Marco Bianucci, an attorney specializing in succession law in Milan, addresses issues related to the legitimate share with an analytical and strategic approach. At the firm located at Via Alberto da Giussano 26, each case is examined starting with a meticulous reconstruction of the hereditary estate and prior donations. The primary objective is always to seek an out-of-court solution, through agreements to reinstate the legitimate share that avoid lengthy and costly disputes between family members. However, if an amicable agreement cannot be reached, the Bianucci Law Firm is prepared to initiate the action for reduction, the judicial tool aimed at rendering testamentary provisions or donations that infringe upon the client's rights ineffective. The strategy is always shared with the client, ensuring transparency and awareness at every stage of the process.

Frequently Asked Questions

Is it possible to disinherit a child in a will?

According to Italian law, it is not possible to completely disinherit a child, except in very serious and specific cases of unworthiness to succeed as provided by the Civil Code. Children are forced heirs and are always entitled to a portion of the estate, regardless of the will's expressed wishes.

How is the legitimate share calculated if there were lifetime donations?

The calculation must take into account not only what remained at the testator's death but also all donations made during life. The value of the donations is fictitiously added to the net residual estate (assets minus debts) to determine the mass on which to calculate the shares due to the heirs.

How much time do I have to contest a will for infringement of the legitimate share?

The action for reduction for infringement of the legitimate share is subject to the ordinary statute of limitations of ten years. The term generally runs from the date of acceptance of the inheritance by the heir who benefited from the infringing provision. However, it is advisable to act promptly to avoid the dissipation of the hereditary estate.

What happens if the estate is not sufficient to cover the legitimate share?

If the remaining estate is not sufficient to satisfy the rights of the forced heirs, the testamentary provisions are proportionally reduced. If this is still not enough, lifetime donations made by the deceased must be reduced, starting from the most recent and going back to earlier ones until the due share is reinstated.

Request a Legal Consultation in Milan

If you believe your rights as a forced heir have been infringed or you have doubts about the validity of a will, it is essential to act with awareness. Contact Avv. Marco Bianucci for an in-depth evaluation of your situation. The Bianucci Law Firm, located at Via Alberto da Giussano 26 in Milan, is at your disposal to analyze your case and define the most effective strategy for protecting your family's assets.