Inheritance: Does the Second Wife Have Rights to the Donation to the Children?

Understanding the Legal Implications of Remarrying on Inheritance

A person planning to remarry may wonder: Can my future wife challenge a property donation made to my children from my first marriage? How would inheritance laws affect this donation, particularly if my only source of income is a pension?

This article clarifies:

• The inheritance rights of a second spouse.
• The legal status of donations made before remarriage.
• How inheritance shares are calculated in blended families.

Inheritance Rights of a Second Spouse

If a person remarries, the new wife acquires inheritance rights regardless of whether there is a will or not. However:

• The children of the second wife from her previous relationships do not become heirs.
• The new spouse has a legal claim to a portion of the inheritance.

These rules remain in effect even if the individual has made prior property donations to their children from a first marriage.

How Property Donations to Children Affect Inheritance

If a person donates bare ownership of a property to their children but retains usufruct (the right to live in or benefit from it), the law considers this donation an advance on the inheritance.

At the time of death, the full ownership value of this property is included in the total estate value. This means:

• The donated property is added to other assets to determine the total inheritance.
• The legal inheritance shares (due to children and the second spouse) are calculated from this total value.

This principle was confirmed by the Italian Supreme Court (Ruling No. 14,747 of 2016).

Can the Second Wife Challenge a Prior Donation

Yes, under certain conditions. If, after calculating the total estate value, the second wife’s legal inheritance share is not met, she has the right to challenge prior donations.

• She can demand compensation from the other heirs if her rightful share is reduced.
• She may request the reduction of donations made before the marriage, even if they were given to children from a previous marriage.

This principle was upheld by the Court of Cassation (Ruling No. 4,445 of 2016), which established that a spouse married after the birth of children from a first marriage can challenge past donations to ensure their legal inheritance rights.

Key Takeaways & Legal Considerations

• A second spouse is legally entitled to part of the inheritance, even if the deceased had children from a first marriage.
• Donations made to children before remarriage are considered part of the estate and may affect inheritance calculations.
• If the second wife’s share is not fully covered, she can take legal action to claim her rightful portion.
• The children of a second wife do not inherit from their stepfather unless explicitly included in a will.

To prevent inheritance disputes, it is advisable to consult a notary and carefully plan asset distribution before remarriage.

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.