If a person who has been called to inherit dies before deciding whether to accept or renounce the inheritance, the right to make that decision does not disappear. Instead, it passes to their own heirs. This legal mechanism is known as the transmission of the right to accept the inheritance.
In practice, when the original deceased person (the de cuius) dies, the first heir called to inherit may not have yet expressed their will. If that heir dies before accepting or renouncing, their right to decide is transferred to their heirs.
This mechanism takes precedence over other succession solutions, such as substitution or representation, because the right to inherit does not lapse—it simply moves to another party.
How the Law Determines Who Takes the Inheritance
When the designated heir cannot or does not want to accept the inheritance, the law follows a precise hierarchy to determine who will take their place. The goal is to ensure the estate always finds an owner.
The order of priority is:
- Substitution – if the deceased specified a replacement heir in their will
- Representation – if the original heir was a child, sibling, or descendant of the deceased
- Accretion – if other co-heirs exist and none of the previous mechanisms apply
If none of these mechanisms can operate, the vacant share is distributed according to intestate succession, meaning the legal heirs determined by law receive it.
What Is Ordinary Substitution in a Will?
The first and most important mechanism is ordinary substitution, regulated by Article 688 of the Civil Code. This allows the testator to plan in advance by naming a backup heir.
In a will, the testator can designate:
- the primary heir (Plan A)
- a substitute heir (Plan B) if the first cannot or does not want to accept
Because substitution expresses the explicit will of the deceased, it takes precedence over all other mechanisms.
Example:
Mario writes in his will:
“I leave my beach house to my brother Luca. If Luca cannot or does not accept, the house will go to my friend Sara.”
If Luca dies or renounces the inheritance, Sara receives the house directly, because the will already established the replacement heir.
When Does Representation Apply?
If the will does not provide a substitute, the law applies the mechanism of representation (Articles 467 and following of the Civil Code).
Representation protects the family bloodline by allowing descendants to take the place of their parent or grandparent who cannot inherit.
For representation to apply:
- the person who cannot inherit must be a child, brother, or sister of the deceased
- the person taking their place must be a descendant of that person
Representation can apply both in testate and intestate successions, provided no substitution was arranged.
Example
Anna dies without a will. Her son Marco would normally inherit everything. However, Marco died the year before Anna. Marco had two children, Luca and Giulia.
Through representation, Luca and Giulia inherit their father’s share, dividing it equally. The result would be the same if Marco had been alive but renounced the inheritance.
How Accretion Works Among Co-Heirs
If there is no substitution and representation does not apply, the law turns to the third mechanism: accretion (Article 674 of the Civil Code).
Accretion occurs when multiple heirs were appointed together. If one of them renounces the inheritance, their share automatically increases the shares of the remaining heirs.
For accretion to apply:
- the heirs must have been appointed in the same will
- their shares must be equal or not specifically divided
Example:
Giovanni writes in his will:
“I leave all my assets in equal parts to my friends Tizio, Caio, and Sempronio.” If Tizio renounces his one-third share:
- representation does not apply (he is not a relative)
- there is no substitute heir
Therefore, Tizio’s share is divided between Caio and Sempronio, who each receive half of the estate.
The General Rule for Vacant Inheritance Shares
From these mechanisms we can derive a clear principle: the law follows a strict hierarchy to prevent inheritance gaps.
The order is:
1. The will of the deceased (substitution)
2. Protection of the family line (representation)
3. Expansion of co-heirs’ shares (accretion)
Only when none of these solutions apply does the share pass according to intestate succession rules.
What Is the Transmission of the Right to Accept an Inheritance?
Article 479 of the Civil Code establishes that if an heir dies without accepting the inheritance, their right to accept it passes to their own heirs.
In this situation:
- the deceased heir is called the transmitter
- their heirs are called the transmittees
What is transferred is not just the option to accept, but the entire legal position connected to that inheritance, including the powers provided by law.
This mechanism ensures that the right to inherit is not lost simply because the first heir died before making a decision.
How Does the Transmission of the Right Work?
Transmission occurs automatically when the first heir dies without performing acts that imply acceptance.
It represents an exception to the general rule that the right to inherit cannot be transferred, because the law allows succession in that right only to the heir’s own successors.
However, if the first heir had already taken actions that legally imply acceptance—such as selling inherited assets or disposing of them in a will—then transmission does not occur, because the inheritance would already have been considered accepted.
Importantly, the mechanism is independent of the will of both the transmitter and the transmittee.
What Conditions Are Required for Transmission? Two conditions must exist for transmission to take place:
- the first heir must die before accepting the inheritance, while still having the right to accept it
- the transmittee must become heir of the transmitter by accepting their inheritance
If the transmittee renounces the inheritance of the transmitter, they automatically renounce the transmitted inheritance as well.
Do the Heirs Need to Accept Two Inheritances?
Yes. Because two separate successions exist, the heirs must perform two distinct acts of acceptance:
1. acceptance of the inheritance of the transmitter
2. acceptance of the inheritance originally left by the first deceased person
The Court of Cassation confirmed that becoming heir of the transmitter does not automatically make someone heir of the original deceased.
Do the Time Limits Restart?
No. The time limits for accepting the original inheritance do not restart.
The right to accept is transmitted exactly as it existed, including any deadlines or conditions attached to it.
Example:
If the original deceased died on 1 January 2002, the ten-year limitation period ends on 1 January 2012.
If the first heir dies in 2011 without accepting, their heirs only have until 1 January 2012 to accept that inheritance.
However, the inheritance of the transmitter follows its own separate ten-year period, starting from the transmitter’s death.
What If the First Heir Had Already Renounced?
Even if the first heir had renounced the inheritance before dying, the right may still be transmitted.
Under Article 525 of the Civil Code, a renunciation can sometimes be revoked. If the conditions for revocation still exist and no other heir has already accepted the inheritance, the transmittees may revoke the renunciation and accept the inheritance.
What Happens If the Transmitted Heirs Disagree?
If several transmittees inherit the right to accept and they do not agree, the law resolves the conflict.
- those who accept the inheritance acquire the rights and obligations connected to it
- those who renounce remain unaffected
The accepting heirs effectively absorb the shares of those who renounce, but this does not benefit any secondary heirs of the original deceased.
This rule confirms an important principle: the transmitted right to accept remains a single, indivisible legal position, even though several heirs may hold it.
VGS Family Lawyers is a law firm that offers assistance to English-speaking clients with interests in Italy. In case you need assistance, please write to: info@vgslawyers.com.