Common-Law Couple with Children: Who Gets the Inheritance?

Understanding Inheritance Succession for Cohabiting Partners with Children

When two unmarried partners have children, a crucial question arises: who inherits the estate if one partner passes away? Does the surviving partner receive any inheritance, or does everything go to the child? What happens if there is no will?

This article explores inheritance laws for common-law couples with children, explaining:

• Why children always inherit while the surviving partner does not.
• The importance of making a will to protect a partner.
• Legal inheritance shares and their impact on estate division.

Why Children Always Inherit, but the Partner Does Not

Unlike married couples or those in civil unions (regulated by the Cirinnà Law), common-law partners do not have automatic inheritance rights.

Even if the couple is registered at the municipality, there are no legal protections ensuring inheritance between them.

Instead, children always inherit as legitimate and forced heirs. If a parent dies without a will, the entire estate goes to the child. The surviving partner inherits nothing unless explicitly mentioned in a will.

What Happens If One Partner Leaves Everything to the Other?

A person can make a will to leave part of their estate to their partner. However, they cannot disinherit their child. By law, the child is entitled to a reserved share:

• If there is one child, they are entitled to at least 50% of the inheritance.
• If there are multiple children, they must receive at least two-thirds of the estate.
• If a will violates these rules, the child can take legal action to reclaim their rightful share.
  Example Case:
• Marco and Anna are unmarried partners with a son, Stefano.
• If Marco dies without a will, Stefano inherits 100% of Marco’s estate. ● If Marco makes a will, he can leave up to 50% of his assets to Anna, but Stefano must still receive his legal share.

Inheritance Shares: Division Between Partner and Children

The division of inheritance depends on whether a will exists:

If There Is No Will:

• The child becomes the universal heir and inherits everything.
• If there are multiple children, the estate is equally divided among them.
• The surviving partner receives nothing.

If There Is a Will:

• The child must receive their legal share (50% for one child, 67% if there are multiple children).
• The remaining portion can be left to the partner or another beneficiary.

Why Cohabiting Partners Must Make a Will

Without a will, the surviving partner has no legal claim to inheritance, even if the couple has lived together for decades or has children together.

To ensure that a partner receives assets, it is essential to:

• Draft a valid will mentioning the partner as a beneficiary.
• Consult a notary to ensure legal compliance.
• Understand forced heirship rules to avoid legal disputes.

Taxation: How Common-Law Partners Are Affected

Unlike married couples, common-law partners do not benefit from inheritance tax exemptions. Spouses pay zero inheritance tax up to €1 million, whereas cohabiting partners face:

• 8% inheritance tax on all inherited assets.
• No tax reductions, as they are treated as strangers in inheritance matters.

Current Legal Proposals for Reform

Several proposals have been made in Parliament to equalize inheritance rights for common-law partners. However, the Cirinnà Law (2016) only granted equal rights to same-sex civil unions, leaving heterosexual cohabiting partners unprotected.

Key Takeaways & Recommendations

• Cohabiting partners do not inherit automatically.
• Children always inherit a mandatory share.
• A will is necessary to ensure the surviving partner receives assets.
• Inheritance taxes for common-law partners are higher.
• Legal reforms are still pending to improve cohabiting partners’ rights.

For legal assistance, consult a notary to draft a valid will that protects both your partner and your children.

VGS Family Lawyers is a law firm that specializes in family law matters such as inheritance, separation and divorce, child custody, and more.
In case you need assistance, please write to: info@vgslawyers.com.