When an inheritance has not yet been accepted and no one is in possession of the assets, it is considered an estate in abeyance (or dormant inheritance). A key question arises: can the heirs simply agree among themselves on how to divide the assets without formally accepting the inheritance?
The answer is yes, but with an important consequence: that agreement is not neutral. In most cases, it produces the effect of tacit acceptance of the inheritance, immediately changing the legal status of the parties involved.
When Is an Inheritance Considered in Abeyance?
An inheritance is in abeyance when there is still no accepted heir and no one has taken possession of the assets (Art. 528 Civil Code).
This situation occurs, for example:
- when heirs have not yet decided whether to accept or renounce
- when heirs are still being identified
- when no one has taken control of the estate
In this phase, the estate has no true owner. The court may appoint a curator of the estate in abeyance to preserve and manage the assets until acceptance occurs.
Who Are the Heirs Before Acceptance?
It is important to distinguish between those called to the inheritance and actual heirs.
- Called heirs: those who may inherit, but have not yet accepted
- Actual heirs: those who accept the inheritance (expressly or tacitly) Until acceptance:
- there are no co-heirs in the strict legal sense
- each person may still choose to accept or renounce
Only acceptance makes a person the legal successor of the deceased, including both assets and debts (Art. 459 Civil Code).
Can Heirs Agree on the Division?
Yes, but this is the crucial point: an agreement on division is not just an internal arrangement.
An agreement that divides inherited assets is generally considered tacit acceptance of the inheritance (Art. 476 Civil Code).
This happens because:
- dividing assets means disposing of them as owners
- only heirs can exercise this power
Case law confirms this:
- a proposal for division is considered tacit acceptance (Cass. 4328/1977)
- actions aimed at division can have the same effect (Cass. 5443/1994)
Example
If two siblings decide:
- who gets the house
- who gets the land
they are not just organizing assets — they are behaving as owners. This means they are already acting as heirs.
What Changes After the Agreement?
Once tacit acceptance occurs, the legal situation changes immediately:
- the inheritance is no longer “pending” (Art. 532 Civil Code)
- the heirs become co-heirs in full legal terms
- ownership is retroactively considered from the opening of the succession (Art. 459 Civil Code)
This means heirs are treated as such from the moment of death, not from the moment of agreement.
Role of the Curator of the Estate
The curator of the estate in abeyance:
- only manages and preserves the assets
- does not become an heir
- does not take ownership of the estate
Once acceptance occurs, the curator’s role ends and they must render an account of their management.
Is the Agreement Still Valid Without Formal Acceptance?
Yes, but its effects are decisive.
The agreement:
- is valid between the parties
- but also acts as tacit acceptance + division contract at the same time
In practice, it does not simply organize a dormant estate — it transforms it into an accepted inheritance.
Can Co-Heirs Freely Divide the Estate?
Once the inheritance is accepted, co-heirs may request division at any time (Art. 713 Civil Code).
Division can be:
- consensual (by agreement)
- judicial (if no agreement is reached)
Example
Three siblings inherit their mother’s estate:
- they can divide assets by agreement
- or go to court if they disagree
Responsibilities After Acceptance
Once acceptance occurs, co-heirs assume responsibility for debts.
Under Article 752 Civil Code:
- each heir is liable for debts in proportion to their share
- unless joint liability applies in specific tax cases
Example:
- 50% inheritance share = 50% of debts
Debts may include:
- mortgages
- loans
- supplier debts
- utilities
- condominium arrears
Renunciation for Payment: A Special Case A renunciation made in exchange for money or benefits is not a true renunciation. Under Article 478 Civil Code:
- renouncing “for consideration” equals acceptance
Case law confirms this (Cass. 19125/2021).
In short:
- a free renunciation is valid only if formal and unconditional
- a paid renunciation is treated as acceptance
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