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Why a long-term partner receives nothing from your Italian estate without a properly drafted will — and the one drafting step that fixes it
Your partner of twelve years. The Umbrian farmhouse you renovated together. The Italian bank account. If you died tomorrow without an Italian-law-compliant will, your partner would receive none of it. Not a euro. Not a day's right to stay in the house. Italian intestate succession would pass everything to your blood relatives — even distant ones you have not spoken to in decades. This is not a hypothetical. It is the default position under Italian law for every cohabiting couple who have not acted.
No. Under Italian intestate succession (successione legittima) — governed by Articles 565 to 586 of the Italian Civil Code (codice civile) — the categories of heirs are spouse, civil partner, children, parents, siblings, and more distant relatives. A cohabiting partner does not feature among them. Even a partner registered under Law 76 of 2016, which created the Italian registered cohabitation (convivenza di fatto), receives no mandatory inheritance share and no intestate rights. Law 76/2016 gives a surviving cohabiting partner a limited right to remain in the shared home for up to five years (or until any minor children of the couple reach majority), but that is a personal right of occupation, not an inheritance. It confers no title to the property. The day you die without a will, your registered partner gets temporary use of the sofa, then must go.
Unlike in England and Wales, where a surviving cohabiting partner of at least two years may apply to the court for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, Italian law grants no equivalent statutory claim. There is no Italian equivalent of the 1975 Act claim. No judicial discretion to award the family home to a financially dependent partner. If you have not written a will, the law decides — and your partner comes last, after every blood relative to the sixth degree.
Since 17 August 2015, cross-border estates in EU Member States have been governed by Regulation (EU) 650/2012 on succession matters (the EU Succession Regulation). The Regulation's default rule is straightforward: the law of the country where you were habitually resident at the time of death governs your entire estate. For a UK national who has been living in Tuscany or Puglia for several years, that country is Italy. Italian succession law applies — including Italian intestacy, Italian forced heirship, and Italian rules on immovable property — regardless of your British passport.
Post-Brexit, the position has not changed in this respect. The EU Succession Regulation applies in Italy. The UK left the EU, but Italy did not. A UK national habitually resident in Italy on the date of death still falls squarely within the Regulation's scope as far as Italian courts are concerned. What changed is that UK courts no longer apply the Regulation domestically. The practical consequence: your estate administration will be handled through Italian proceedings, under Italian rules, unless you have made a valid election.
The Regulation does offer an escape. Under Article 22, a person may elect the law of their nationality to govern their estate — the so-called professio iuris. A UK national can therefore elect English law in a will and, in principle, escape Italian intestacy. Many UK expats stop there — and that is a mistake.
The professio iuris election is a clause in your will stating that you choose the law of your nationality — English law — to govern your succession. Done correctly, it shifts the governing law from Italian to English. Under English law, you have testamentary freedom: you can leave everything to your partner. Problem apparently solved.
But there is a trap that almost no commentary on this topic flags, and it is specific to Italian real estate.
Article 34 of the EU Succession Regulation permits a Member State court to apply renvoi: if the law elected under professio iuris refers back to Italian law — for instance, because English private international law considers Italian law applicable to immovable property situated in Italy — the Italian court may follow that referral back and apply Italian law to the Italian property. English private international law historically applies the lex situs (the law of the place where the property is located) to immovable property. Italian property is therefore located in Italy. If the Italian court reads your English-law election as triggering a renvoi back to Italian law for the Italian house, it will apply Italian succession rules to that asset.
Italian law, when reintroduced through renvoi, brings with it the forced heirship share (legittima, also called quota di riserva) under Articles 536 to 564 of the Italian Civil Code. If you have children, they hold a reserved fraction of the estate that no will can override. A partner who was supposed to receive the Italian house may find that fraction reclaimed by a forced heir. In the worst case, the whole of the professio iuris strategy unravels for the Italian assets.
The Latin maxim nemo plus iuris ad alium transferre potest quam ipse habet — nobody can transfer a greater right than they themselves hold — applies here in a technical sense: the testator cannot dispose of the forced heir's reserved share, whatever law is chosen.
As the English judge and jurist Lord Mansfield observed, the rules of private international law exist not to defeat expectations but to give effect to them across borders. The problem is that without careful drafting, the technical interaction of the Regulation and English conflict-of-laws rules defeats exactly the expectation the testator had when electing English law.
Yes — but only if the will is drafted to eliminate the renvoi risk explicitly. The technique is this: a UK national habitually resident in Italy should execute a separate Italian-law testament (testamento olografo or testamento pubblico drawn up before an Italian notary) specifically covering Italian immovable property. That Italian testament should contain the professio iuris election of English law and should expressly state that no renvoi is intended and that Italian courts are asked to apply English domestic succession law, not English conflict-of-laws rules, to the Italian property. Article 34(2) of the EU Succession Regulation supports this: renvoi is excluded where the applicable law is that chosen by the deceased.
In that Italian testament, the partner is named as legatee (legatario) of the Italian property or of a specific monetary legacy charged on it. A legacy (legato) under Italian law does not make the partner an heir for liability purposes; it is a targeted transfer of a specific asset. The partner receives the property directly, without being drawn into the general administration of the estate. This sidesteps the Italian intestacy rules entirely.
The structure is therefore two-instrument: a UK will (or trust deed) governing UK-sited assets, and a separate Italian testament governing Italian-sited assets, both professionally co-ordinated so they do not contradict or revoke one another. Co-ordination is essential. A broadly worded UK will that says "I revoke all previous wills" will revoke the Italian testament unless it contains a territorial carve-out.
The forced heirship share remains a constraint. If you have children, the Italian testament must not infringe their reserved fraction. For a testator with two children, Italian law reserves one-half of the estate for the children collectively. The partner's legacy must be calibrated within the disposable quota.
The first step is a visura catastale — a land registry search (visura catastale) — to confirm the current registered title, value, and mortgage position of any Italian property. That provides the figures needed to calculate the disposable quota accurately before any legacy is drafted. Italian land registry searches can be obtained from the Agenzia delle Entrate – Servizi Catastali; approximate turnaround is five working days.
The second step is to establish whether a convivenza di fatto is already registered with the Italian local municipality (comune). If not, registering now has no effect on inheritance rights, but it does activate the five-year occupation right under Law 76/2016, which is worth preserving as a fallback while the wills are being executed.
The third step is to instruct a lawyer experienced in cross-border Italian succession to draft or review the Italian testament — and to put that lawyer in contact with the solicitor handling the UK will, so that the two instruments are territorially scoped correctly and the revocation clause in the UK will is carved out. This is not a task for two professionals working independently: the risk of one instrument revoking the other, or of a gap in asset coverage, is real.
Timing matters. Italian testaments before a notary take around 15 to 30 days to arrange from first instruction, assuming no complications with title. A handwritten (olografo) Italian will can be executed immediately, but it requires specific formalities — entirely handwritten, dated and signed by the testator — and is more vulnerable to challenge. A notarial will is recommended for Italian property above approximately €50,000 in value.
In the files we handle involving UK nationals in Italy, the most common error is a UK will that makes a professio iuris election but contains no Italian-specific provisions for Italian real estate. The testator was advised — correctly — that they could elect English law under the EU Succession Regulation, but nobody drafted the separate Italian instrument or addressed the renvoi mechanism. We see this particularly where the Italian property was acquired after the UK will was written, and the UK solicitor was never informed of the Italian purchase. The Italian asset sits unaddressed, and on the death of the testator, the partner is told by the Italian notary administering the estate that there is no valid Italian testamentary disposition — and that intestacy applies.
My partner and I are registered as a convivenza di fatto in Italy. Does that give them inheritance rights?
No. Registration under Law 76/2016 gives your partner a right to remain in the shared home for up to five years after your death and certain social-security protections, but it grants no intestate inheritance right and no forced heirship share. Only a valid will in your partner's favour creates an inheritance entitlement under Italian law.
We have been together for 20 years. Doesn't Italian law recognise some kind of common-law marriage after that long?
Italy does not have a concept equivalent to common-law marriage or the English cohabitation presumptions. The length of the relationship is legally irrelevant for succession purposes. A partner of 20 years and a partner of 20 months are in precisely the same position under Italian intestacy: they receive nothing. Duration is simply not a criterion the Italian Civil Code recognises.
If I elect English law in my will, can Italian forced heirs still challenge my partner's legacy?
Yes, potentially. If you have children or other forced heirs, they retain the right to bring a reduction action (azione di riduzione) under Italian law if their reserved share is infringed — regardless of your professio iuris election, because forced heirship is treated by Italian courts as a matter of public policy (ordine pubblico). A correctly calculated legacy that stays within the disposable quota avoids this challenge. The calculation must be done on the value of the Italian estate at the date of death, not at the date the will was written.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
