Forced Heirship Italy: Fixed Shares That Override Your Will

What foreign property owners and expats must know before signing a will that touches an Italian estate

LANG: English (en) · AREA: Italian Inheritance & Succession for Foreigners · TYPE: Short practical tip · MODEL: Sonnet 5.5 · SEO 84/100 · Flesch Reading Ease 47 · QA acceptable

ABSTRACT: Italian law reserves a fixed portion of every estate for close relatives — and no will, trust, or foreign law clause can reliably extinguish it. Foreign nationals who own property in Italy or who live there are routinely surprised by these rules. This article explains exactly who is protected, how much they receive, and the one planning tool that may — but may not — let you choose a different path.

Can your Italian will actually leave everything to whoever you choose?

The short answer is no. Italian law imposes forced heirship: a set of rules that reserves a fixed share of your estate for certain relatives, no matter what your will says. If you own a Tuscan farmhouse, a Milan apartment, or any asset in Italy — or if you have simply made Italy your home — those rules may apply to you whether you are Italian or not.

Who is a forced heir under Italian law?

Italian law reserves a minimum portion of the estate — the forced heirship share (legittima) — for certain close relatives, known as legittimari, regardless of the terms of any will. The protected categories and their minimum shares, as provided in Articles 536–564 of the Italian Civil Code (codice civile), are as follows. A spouse alone receives one half. One child alone receives one half. Two or more children together receive two thirds, divided equally. Where there is both a spouse and one child, each receives one third, leaving only one third freely disposable. Where there is a spouse and two or more children, the spouse receives one quarter and the children share one half, leaving only one quarter freely disposable. One protection that routinely surprises foreign heirs: on top of the reserved share, the surviving spouse has a separate statutory right under Article 540 of the Italian Civil Code to continue living in the family home and to use its furnishings.

A will that violates these allocations is not automatically void. A testamentary provision that infringes on the forced heirship shares does not make the will null, but entitles the prejudiced forced heirs to bring a reduction claim (azione di riduzione) to recover their protected share. That claim is brought before an Italian civil court and can claw back lifetime gifts as well as testamentary dispositions.

Unlike in common-law countries: why testamentary freedom stops at the Italian border

This is the passage most foreign readers search for and rarely find explained plainly. Unlike in England and Wales, where a testator may in principle leave their entire estate to a friend, a charity, or a new partner (subject only to claims under the Inheritance (Provision for Family and Dependants) Act 1975, which are discretionary and need-based), Italian forced heirship is one of the most significant features of succession law for foreign heirs — particularly those from common-law jurisdictions. The Italian entitlement is not discretionary. It does not depend on financial need. It does not require a court to exercise any judgement about what is "reasonable." Children, spouses, and sometimes parents are entitled to fixed shares of an estate, and these rights cannot be overridden by will. An Australian, British, or American testator who writes an Italian will ignoring these rules is not disinheriting their children. They are handing those children a lawsuit.

Since 2016, the surviving partner in a registered civil partnership (unione civile) has been granted identical inheritance rights to a surviving spouse, including entitlement to a forced share of the estate. Unregistered cohabitants, even those in a long-term committed relationship, have no automatic inheritance rights under Italian law unless explicitly named in a will.

Nemo plus iuris ad alium transferre potest quam ipse habet — one cannot transfer to another more right than one holds oneself. In the Italian succession context this maxim captures precisely why a testator cannot grant a beneficiary a larger share than the law permits after the forced shares are carved out.

Does choosing your national law escape the forced heirship share?

Foreign heirs dealing with an Italian estate should be aware that Italian forced heirship rules may apply even where the deceased was not Italian, depending on the applicable law determined under Regulation (EU) No. 650/2012 (Brussels IV). For estates administered after 17 August 2015, that Regulation applies across EU member states. Under Article 21 of the Regulation, the law governing a succession is the law of the country where the deceased had their habitual residence at the time of death, not their nationality.

Here is where careful planning — and a critical risk — arise together. The Regulation also includes the professio iuris, which allows any individual to determine in their will that their succession shall be governed by the law of their nationality. While Italian law is protective of family members and restricts testamentary freedom, many other legal systems grant the testator almost complete discretion over the distribution of their estate; by making a valid professio iuris, a foreign national residing in Italy can align their estate plan with the legal traditions of their home country.

So a British national living in Rome writes a will electing English law. Does the forced heirship share disappear? Possibly — but not certainly. Article 35 of Regulation (EU) No. 650/2012 preserves an ordre public exception: an Italian court may refuse to apply the chosen foreign law if its results are "manifestly incompatible" with Italian public policy. It has been argued — and the debate is live — that provisions on forced heirship pertain to public policy, and that Article 35 of the Regulation is precisely the mechanism to protect mandatory heirs who may be disadvantaged by the chosen law, thereby preventing the professio iuris from being used to frustrate the expectations of those entitled to a forced share. Whether an Italian court will invoke Article 35 to reinstate the legittima despite a valid choice-of-law clause is not settled. Regulation No. 650/2012 does not expressly provide that the rules on forced heirship constitute a limit to the applicability in Italy of a foreign law that does not provide for any protection of forced heirs or provides for a less favourable protection than Italian law. The outcome depends on the facts of each case — and that uncertainty is precisely the risk.

What the Italian Court of Cassation said in January 2025

The most recent authoritative signal comes from the Italian Court of Cassation, Second Civil Section, Decision No. 1632 of 23 January 2025 (Cass. civ., Sez. II, sent. 23 gennaio 2025 n. 1632). The court resolved a dispute on the applicable law to a cross-border succession of an Australian woman who died in Italy in 1994. The court confirmed that if the applicable foreign law — such as Australian law in that case — refers the matter back to the law of the country where the property is located, Italian law will then apply to the succession. This mechanism can be decisive, as Italian law guarantees forced heirship rights to children and other close relatives. The Court partially annulled the judgement of the Florence Court of Appeal and remanded the case, instructing it to reconsider the inheritance claims in light of Italian law — meaning the children may still obtain recognition of their reserved shares in the Tuscan property, despite their mother's decision to leave her entire estate to her partner.

The practical read: even where a foreign law is initially the governing law, if that foreign law itself points back to Italy for immovable assets located there, Italian forced heirship rules re-enter through the back door. A clever choice-of-law clause does not guarantee escape.

What to do: a practical checklist for foreign owners and expats

Start here. Map your estate: which assets are in Italy, what is their approximate value, and who your close relatives are. Even a single Italian property worth, say, EUR 400,000 triggers the calculation. If you have two children and a spouse, EUR 300,000 of that property — three quarters of the estate — is already spoken for under Italian law.

Second, identify whether EU Regulation 650/2012 applies to you. If you are habitually resident in Italy, Italian law governs by default. If you are habitually resident outside an EU member state — for example, in the United Kingdom after Brexit, the United States, Canada, or Australia — the Regulation's conflict-of-law rules still apply to Italian assets when Italian courts have jurisdiction over them.

Third, if you wish to make a professio iuris electing your national law, understand that this is a valid and sometimes effective tool, but it must be express and unequivocal in the will, and it does not come with a guarantee that an Italian court will not invoke the public-policy exception under Article 35 of Regulation (EU) No. 650/2012 to protect a forced heir who challenges your estate.

Fourth, review lifetime gifts. A protected heir can bring an action for reduction (azione di riduzione) asking the court to claw back gifts and bequests that breach the reserved shares, starting with the most recent lifetime gifts. Gifts made during your lifetime are included in the calculation of the estate for this purpose. A gift made ten years before death can still be unwound if the forced share is breached.

Fifth, if you are the foreign heir rather than the testator, know your limitation period. Under Italian law the action for reduction must generally be brought within ten years of the opening of the succession (the date of death). Missing that window forfeits the right.

Practice note: the mistake we see most often

In our files, the most common error is a foreign testator who drafts an English-law will covering their worldwide estate — including an Italian apartment — and inserts a professio iuris electing English law, then assumes the matter is resolved. No Italian-law will is prepared. No separate analysis of the forced heirship exposure on the Italian asset is carried out. When the testator dies, the surviving children — who may themselves be in a different country — receive legal advice in their home jurisdiction that says the will is valid, full stop. It takes an Italian court claim by a disinherited heir, sometimes years later, to reveal that the forced share was never extinguished and that the Italian property is subject to an action for reduction. By then, the property may have been sold, creating a further layer of dispute over monetary compensation. The cost of sorting this out — legal fees, court time, and sometimes the proceeds of a sale being challenged — routinely exceeds EUR 30,000. A correctly drafted estate plan costs a fraction of that.

Frequently asked questions

Can I disinherit my adult child from my Italian property if they are estranged?
Not under Italian law. The forced heirship share applies regardless of the quality of your relationship with the heir. An adult child who has had no contact with you for twenty years retains the same statutory entitlement as one who cared for you daily. Italian law does not recognise disinheritance for anything short of the narrow grounds of unworthiness set out in Article 463 of the Italian Civil Code, which cover specific serious wrongs against the testator. Estrangement is not one of them.

Does the forced heirship share apply to non-Italian assets if I live in Italy?
Yes, it can. If Italian law governs your succession — because Italy is your habitual residence and you have not made a valid professio iuris — the forced heirship calculation covers your worldwide estate, not just Italian assets. This means an Italian court assessing the reserved shares will look at your bank accounts, foreign property, and investments globally when measuring whether a forced heir has received enough.

What happens if I set up a trust to hold my Italian property and bypass the forced share?
Italy ratified the Hague Convention on the law applicable to trusts in 1989, so a trust validly constituted under, for example, English or Jersey law is generally recognised. However, recognition of the trust does not mean the forced heirship share disappears. Forced heirship may also come into play with trust structures: if the existing assets are not enough to cover the minimum shares required by law, the entitled heirs may take legal action against the trust. Italian courts have consistently treated trust funding as a lifetime gift for the purposes of the reduction action. Structuring an Italian estate through a trust without first resolving the forced heirship exposure is a risk, not a solution.

Image prompt: A weathered stone farmhouse in the Tuscan countryside at golden hour, seen through an open wrought-iron gate. In the foreground, a document and a fountain pen rest on a sunlit stone wall, suggesting an estate being settled. Warm amber and terracotta tones, a mood of quiet unresolved tension between a beautiful inheritance and unseen legal complexity. No text in the image. Painterly realist style.

Image file: forced-heirship-italy-fixed-shares-will-cover

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LANGUAGE QA: gives the injured forced heirs the right to bring a reduction action -> entitles the prejudiced forced heirs to bring a reduction claim · can unwind gifts made during the testator's lifetime as well as bequests in the will itself -> can claw back lifetime gifts as well as testamentary dispositions · the wishes expressed in any will -> the terms of any will · set out in Articles 536 to 564 of the Italian Civil Code -> as provided in Articles 536–564 of the Italian Civil Code · leaving just one quarter for everyone else -> leaving only one quarter freely disposable · that Regulation applies within the European Union -> that Regulation applies across EU member states · successions opened after 17 August 2015 -> estates administered after 17 August 2015 · the succession to their estate shall be governed by the law of -> their succession shall be governed by the law of

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REFERENCE: Court of Cassation, Second Civil Section, Decision No. 1632
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