The succession of the surviving spouse often raises a question that seems simple only in appearance: what is actually due to the surviving spouse? The answer does not depend solely on the inheritance share. It is necessary to distinguish between assets that already belong to the spouse, the reserved portion, the right of habitation in the family home, the presence of children, a will, and the matrimonial property regime.

Above all, I want to clarify two common misunderstandings: the right of habitation is not equivalent to ownership of the house, but it can significantly affect the division; furthermore, if the property was under the legal community of property, not all of its value enters the succession. We will look together at the correct order of steps, the differences between similar situations, and the main tax aspects to keep separate from the civil calculation of shares.

The calculation starts with the assets that actually enter the estate

First, the estate is identified, and then the shares are applied. The estate is the set of assets and patrimonial relations belonging to the deceased that are transferred by succession, net of relevant liabilities. It does not always coincide with the value of all the assets used by the couple during the marriage.

The first question actually concerns the ownership of the house and other assets. A property purchased by the deceased before marriage, received by succession or donation, or purchased with personal funds under the conditions provided by law, can remain personal property. Conversely, many purchases made during the marriage fall under the legal community of property, barring exceptions established by law. The reference is made to articles 177 and 179 of the Civil Code.

Death dissolves the legal community of property. Therefore, if the house was actually under the legal community of property, the share already due to the surviving spouse as a consequence of the dissolution does not derive from the inheritance. The part that belonged to the deceased flows into the succession. This step precedes the calculation of the reserved portion: treating the entire property as if it belonged entirely to the deceased alters everyone's shares.

The regime indicated in the purchase deed or marriage certificate is important, but it is not enough on its own. The date of purchase, the origin of the funds, and any declaration made in the notarized deed also matter. The phrase "community of property" does not automatically transform every asset of the couple into a common hereditary asset.

The spouse's reserved portion changes based on other family members

The reserved portion is the minimum part that the law reserves for certain family members. The spouse is a reserved heir: the will cannot freely deprive them of the reserve share. The percentages are calculated on the mass used to verify the protection of reserved heirs, taking into account the assets remaining at the time of death, debts, and, where relevant, donations made during lifetime. Article 556 of the Civil Code governs this reintegration calculation.

If there are no children or ascendants, half of the hereditary estate is reserved for the spouse. If competing with a single child, the spouse's reserve is equal to one-third and the child's to one-third; one-third remains available. If competing with two or more children, the spouse is entitled to one-quarter, the children to half in total, and one-quarter remains available. These reserve shares are indicated by articles 540 and 542 of the Civil Code. If the spouse instead concurs only with ascendants, Article 544 reserves half to the spouse and one quarter to the ascendants, leaving one quarter freely disposable.

The available portion is not a portion "without rules". It is the part of which the deceased can freely dispose by will, for example in favor of one of the children or an outsider to the family. However, a testamentary disposition must be read together with the surviving spouse's right of habitation, because this right can concretely reduce what remains to be divided in full ownership.

Succession without a will follows different rules from those of the reserved portion, while still protecting the spouse. In particular, when the spouse competes with children in intestate succession, the inheritance shares provided by law should not be confused with the reserve percentages used to check any will. This distinction avoids adding or subtracting shares based on percentages referring to different situations.

The right of habitation protects the family home, not every property

The surviving spouse has a real right of habitation over the family home. Article 540, second paragraph, of the Civil Code reserves to the spouse, even if competing with other claimants to the inheritance, the right to inhabit the house used as a family residence and the right to use the furniture that equips it, when the house and furnishings were owned by the deceased or common.

This right allows the surviving spouse to continue living in the property within the limits proper to the right of habitation. It does not automatically make them the owner of the entire house. Children or other heirs can therefore retain ownership shares, but they cannot ignore the right encumbering the property. The right of habitation is personal and does not grant the holder the freedom to act as an owner, for example by transferring it or freely transforming it into a source of income.

The house must be the actual family residence. It is not enough that the property is registered in the name of the deceased or that the couple stayed there occasionally. The Court of Cassation has clarified that the right concerns the dwelling in which the spouses lived stably as the main center of their family life, not two alternative homes or properties used only temporarily. The principle is illustrated in the review of the Court of Cassation on ruling no. 7128 of 2023.

Consequently, a second home, a vacation home, or an apartment kept available do not automatically receive this protection. Even a leased property is not a property owned by the deceased or common pursuant to article 540: the lease relationship may raise other issues, but it does not in itself create the successional right of habitation provided by that rule.

How the right of habitation affects shares

The right of habitation is added to the spouse's share. In intestate succession, the jurisprudence of the Joint Sessions has clarified gastronomic principles that its value should not simply be included in the inheritance share already attributed to the spouse. The capital value of the right is considered before the division of the remainder among co-heirs, with a mechanism assimilated to a pre-legacy. You can examine the criterion in the civil review of the Court of Cassation relating to ruling no. 4847 of 2013.

When instead a will exists and it is necessary to verify compliance with the reserves, the right of habitation affects the mass and the available part. It is therefore not prudent to first divide the property into full ownership percentages and address the right of habitation only at the end. The estimation of the right, also linked to the holder's age and the value of the property, can change the balance among the allocations.

House under the legal community of property: why the spouse may have two different titles

The community share and the inheritance share have different origins. Imagine a house purchased under the legal community of property and used stably by the couple as a family home. Upon the death of one of the spouses, the survivor retains first of all the part due to them for the dissolution of the community; the succession then opens on the part of the deceased. The inheritance share and the right of habitation may be added to this.

This overlap explains why the surviving spouse may result as the holder of an ownership share, an heir for a further share, and the holder of the right of habitation. These are not three interchangeable labels. Ownership allows participation in decisions concerning the asset and disposal of one's share within the limits of the law; the right of habitation instead protects the enjoyment of the family home.

Co-ownership does not eliminate the right of habitation. Article 540 also speaks of a "common" house. Therefore, the fact that the house was registered in both names or included in the legal community of property does not exclude, by itself, the housing protection of the surviving spouse. However, it is necessary to separate with precision the part that already belongs to the survivor from the portion that enters the inheritance, especially if there are children who become co-owners.

A frequent error is to assume that the presence of a child who owns a share allows the immediate imposition of the sale of the house. Division and potential sale require first considering the right of habitation, its duration, and the actual shares. A shared choice may also provide for the assignment of the property to one of the heirs with an equalization payment, but the equalization payment must respect values, shares, and rights that actually exist.

Will, separation, and agreements between heirs

The will can distribute the available part, not cancel the reserved portion. If the deceased leaves the house to a child or a third party, the spouse maintains the protections provided by law when the prerequisites are met. The verification does not end by reading the single testamentary disposition: the calculation mass must be reconstructed and it must be established whether the allocations have infringed the share reserved for the spouse or other reserved heirs.

Personal separation deserves a distinction. The separated spouse without fault generally retains the succession rights of the non-separated spouse. As for the right of habitation, the Court of Cassation has specified that it can also be due in this situation if the house retains a connection with the original family destination; it is not due instead when the property has been left by both or has lost that connection. The principle is reported in ruling no. 22566 of July 26, 2023.

Agreement between heirs is possible, but must start from the correct rights. Heirs can choose to maintain the community, divide the assets, assign the house to one of them, or sell it. A useful agreement does not pretend that the right of habitation does not exist: rather, it establishes how the use of the house, expenses, ownership, and any equalization payment coexist. If the controversial point is the very existence of the right, it must be clarified before undertaking commitments regarding the sale or division.

Taxes do not automatically follow the calculation of the reserved portion

The tax calculation is distinct from the civil one. The reserved portion serves to protect the spouse and other reserved heirs; inheritance tax instead follows its own rules based on the taxable base and beneficiaries. It is therefore not correct to deduce the tax due by directly applying the civil reserve percentages to the total value of the house.

For mortis causa transfers in favor of the spouse and direct-line relatives, Article 7 of the consolidated text on successions, as reformulated by legislative decree no. 139 of 2024 with effectiveness for successions opened from January 1, 2025, provides for a 4 percent rate on the total net value exceeding 1,000,000 euros for each beneficiary. The text of the reform is available on Normattiva.

The allowance is individual, not referred to the entire family. For this reason, the net value devolved to each beneficiary counts, including the value of the rights received when they are relevant for tax purposes. The succession declaration, land registry updates, and taxes on properties then require consistent data on the ownership of the house, the property regime, and the right of habitation. An error in the civil reconstruction can also be reflected in tax compliance obligations.

Frequently Asked Questions

Does the surviving spouse become the owner of the entire family home?

No, not automatically. The right of habitation allows living in the family home, but it is different from full ownership. The spouse may also have an ownership share by succession or by dissolution of the legal community of property. To know who owns the property and in what percentages, it is necessary to separate these titles.

Is the right of habitation due even if there are children?

Yes, the presence of children does not exclude it. Article 540, second paragraph, protects the spouse even when competing with other heirs, provided that the property was the family residence and was owned by the deceased or common. Children can inherit shares of the house, but they must deal with this real right.

Does the second home fall within the spouse's right of habitation?

As a rule, no. The protection concerns the house used as a family residence, meaning the stable and main place of the couple's life. A vacation home or a property used only during certain periods remains in the estate, but does not automatically receive the right of habitation provided for the family home.

Does the community of property mean that half of the house does not go into succession?

Yes, if the property actually fell within the legal community of property. Upon the death of a spouse, the community dissolves and the share already due to the survivor is not inheritance. However, it must be verified that it is not a personal asset, by origin, date, or method of purchase.

Does the spouse always pay inheritance tax?

No, not necessarily. For successions opened from January 1, 2025, the 4 percent tax for spouses and direct-line relatives affects the net value devolved to each beneficiary exceeding 1,000,000 euros. Other taxes and compliance obligations connected to transferred properties remain distinct.