The Right to the Share of Severance Pay (TFR) in the Succession Context

Managing financial matters after a divorce is often complex, but the situation becomes particularly delicate when one of the ex-spouses dies before their Severance Pay (Trattamento di Fine Rapporto - TFR) has been paid out. As a lawyer specializing in family law in Milan, Avv. Marco Bianucci often receives requests for clarification on who is entitled to receive severance pay in these circumstances: does it go to the legal heirs, the new surviving spouse, or the divorced ex-spouse? Understanding one's rights is crucial to avoid losing sums that the law may recognize even years after the end of the marriage.

Requirements for Entitlement to a Share of TFR

To be entitled to the TFR of a deceased ex-spouse, Italian law (specifically Article 12-bis of the Divorce Law) establishes precise, non-derogable requirements. Firstly, a final divorce decree must have been issued; mere separation is not sufficient. Secondly, the ex-spouse making the claim must be receiving a periodic alimony payment from the deceased at the time of their death. Finally, it is essential that the claimant has not remarried. If these requirements are met, the right to a share of the TFR arises automatically, but its quantification can vary significantly depending on the presence of other entitled parties, such as a surviving spouse.

Concurrent Claims Between Ex-Spouse and Surviving Spouse

The crucial issue arises when the deceased employee remarried after the divorce. In this case, the severance pay (which includes TFR and compensation for lack of notice) must be divided between the divorced ex-spouse and the surviving spouse. There is no automatic or equal division: Article 9 of Law 898/1970 entrusts the Court with the task of determining the shares. The primary criterion used by judges is the duration of the respective marriages, but Avv. Marco Bianucci, thanks to his extensive experience in this field, highlights that more recent case law tends to consider other factors as well, such as the financial need of each claimant and the amount of the alimony payment previously received. This is where legal assistance becomes decisive in asserting one's rights and obtaining a fair distribution.

The Approach of Studio Legale Bianucci

Dealing with an inheritance dispute involving TFR requires not only technical expertise but also a clear strategy. Avv. Marco Bianucci's approach, as a lawyer specializing in inheritance and family law in Milan, is based on a rigorous preliminary analysis of the divorce decree and the financial situation of the de cuius (the deceased). The firm reconstructs the exact duration of the employment relationship coinciding with the marriage, precisely calculating the due share (generally 40% of the TFR accrued during the years of marriage). The primary objective is always to reach an out-of-court settlement with the heirs or the surviving spouse, avoiding lengthy litigation, while ensuring that the client's rights are fully protected vis-à-vis the employer or the pension institution.

Frequently Asked Questions

If the ex-spouse remarried, are they entitled to the deceased ex-spouse's TFR?

No, contracting a new marriage is an automatic cause for exclusion from the right to a share of the ex-spouse's TFR, even if they were receiving alimony payments until the time of the new marriage.

How is the share of TFR due to the ex-spouse calculated?

The law generally provides for a share equal to 40% of the total severance pay attributable to the years in which the employment relationship coincided with the marriage. However, in the event of the worker's death and the presence of a surviving spouse, the judge may establish different percentages based on the duration of the marriages and the state of need.

Who must pay the share of TFR to the ex-spouse?

The claim should be directed to the deceased's employer or, if the company is insolvent, to the INPS Guarantee Fund. It is essential to promptly notify your claim to prevent the entire sum from being paid to the legal heirs.

What happens if the TFR has already been paid to the heirs?

If the employer has already paid the full amount to the heirs or the surviving spouse, disregarding the divorced ex-spouse's right, the latter will have to take legal action against whoever improperly received the sum to obtain the restitution of their share.

Does the right to TFR expire?

Yes, the right to claim a share of TFR is subject to the statute of limitations. It is advisable to act immediately after the ex-spouse's death to interrupt the time limits and formalize the request.

Request Legal Consultation in Milan

The loss of an ex-spouse opens up complex legal scenarios that require timeliness and precision. If you believe you are entitled to a share of the TFR or if you find yourself having to manage claims from an ex-spouse, contact Avv. Marco Bianucci for an in-depth assessment of your case. Studio Legale Bianucci, located at Via Alberto da Giussano 26 in Milan, is ready to assist you in recovering what you are owed with professionalism and practicality.