How to Protect Yourself if the Father Bequeaths Everything to the New Wife

When a father remarries and chooses to transfer all his assets, properties, and bank accounts to a second wife, the children might worry about protecting their inheritance rights in Italy. This article discusses the legal framework surrounding this issue, exploring the rights of children as forced heirs under Italian inheritance law and the options available for protecting their interests. Understanding probate in Italy, Italian succession law, and Italian estate planning is crucial in such cases.

Children’s Rights as Forced Heirs

Children are considered forced heirs under Italian inheritance law. This means they are entitled to a share of their parent’s estate, known as the legitimate share, which cannot be deprived by testamentary dispositions or lifetime gifts.
Key Points:

• A child can only assert their right to the legitimate share after the parent’s death.
• The timeframe to challenge the division of inheritance in Italy is 10 years from the opening of the succession.
• While the parent is alive, children have no rights over the parent’s assets and cannot prevent acts of disposition, such as donations or sales.

Legal Actions Available After the Parent’s Death

Action for Reduction
If the legitimate share is violated, the child can:

• Initiate an action for reduction against the surviving spouse to challenge the division of inheritance in Italy.

Action for Restitution
If the assets have been sold to third parties, the child may:

• Take action against the buyer, even if the property is encumbered (e.g., by a mortgage).
• This must be done within 20 years of the sale under Italian succession law.

Preventive Measures: Opposition to Donation

To protect future inheritance rights in Italy, Law No. 80/2005 introduced a preventive tool: opposition to the donation. This measure allows forced heirs (including children) to take legal steps to protect their rights in Italian estate planning.

Notify and Record Opposition

• File an extrajudicial act of opposition to the donation against the donee and any subsequent purchasers.
• By doing so, the 20-year limitation period for inheritance restitution claims in Italy is suspended.

Benefits of Opposition

• Opposition preserves the right to take action for reduction and restitution, even beyond 20 years from the donation, in case of a violation of the legitimate share upon the parent’s death.

Judicial Interpretations

Court of Cassation Ruling No. 4523/2022

• Opposition to a donation does not grant current rights over the parent’s assets.
• It serves as a protective measure for future inheritance claims in Italy, ensuring that heirs can act after the parent’s death.

Conditions and Limitations of Opposition

1. Notification Requirements
   ○ The opposition to the donation must be notified to the donee and their successors.
2. Renewal Obligation
   ○ The opposition loses effect if not renewed before 20 years from its registration.

Conclusions
To protect yourself if your father transfers all assets to a new wife, consider the following steps:

• Notify and register opposition: Use Article 563, fourth paragraph, of the Civil Code to file an opposition against the new wife. This ensures the suspension of the 20-year period for restitution claims under Italian succession law.
• Monitor the father’s transactions: Keep track of any dispositive acts and renew opposition if necessary before the expiration of 20 years.
• Wait for succession: After the father’s death, initiate an action for reduction if the legitimate share has been violated.

Important Notes:

• Parents cannot be prevented from disposing of their assets during their lifetime. ● Succession agreements made during the parent’s lifetime are null and void under Italian inheritance law.

Professional Advice

Consult a lawyer specializing in Italian estate planning and probate in Italy to evaluate your situation and determine whether to proceed with opposition to the donation. This article provides an overview of the legal protections available to children under Italian succession law. Taking timely and informed actions can help safeguard your inheritance rights in Italy.

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.