Inheritance: Is Community Property or Separate Property Better?

Choosing between community property and separate property at marriage may seem like a minor formality, but it has major consequences when a spouse dies. The chosen regime affects who inherits, how bank accounts are treated, and whether disputes may arise with other heirs, such as siblings. There is no single “best” option—everything depends on family structure and asset-protection goals.

Who Inherits If There Are No Children?

If a spouse dies without children or surviving parents and no will exists:

Two-thirds of the estate go to the surviving spouse, who also has the right to live in the marital home.
One-third goes to the deceased’s siblings (Art. 582 Civil Code).

An important point: siblings are not forced heirs. This means they can be completely excluded through a will naming the spouse as sole heir.

Separate Property: Beware of Informal Donations

Under the separate property regime, each spouse owns what they earn or acquire. While this provides clarity, it does not eliminate all risks.

If one spouse transfers large sums to the other (for example, by bank transfer), this may be considered a donation. According to the Supreme Court (United Sections, No. 18725/2017), donations of significant value made without a notarial deed are null and void.

Practical consequence:

After death, the deceased’s heirs (such as siblings) may challenge such transfers and reclaim the money. The safest way to protect the surviving spouse remains a will.

Community Property: How Are Bank Accounts Treated?

In community property, bank accounts are more complex. The law presumes that funds in a joint account are owned equally by the spouses. However, this presumption can be overturned.

Both the surviving spouse and the other heirs may prove that the funds actually belonged to only one spouse—for example, if they came from:

a salary,
a personal inheritance,
a personal donation.

Evidence such as bank statements and pay slips may be used, often leading to disputes among heirs.

Deferred Community: Why It Matters at Death A key feature of community property is deferred community.

During marriage:

A spouse’s salary remains their personal property, even if deposited into a personal account.

At dissolution of the community (including death):

Any savings left in that account become community property and must be divided in half between the surviving spouse and the deceased’s heirs.

This rule makes final accounting far more complex than under separate property, where ownership remains clear and unchanged.

Conclusion

For inheritance purposes:

Separate property offers clearer ownership but requires careful planning, especially regarding donations.
Community property may protect the surviving spouse but often leads to complex calculations and disputes, particularly over bank accounts and saved income.

There is no universally better choice. The right regime depends on family structure, assets, and whether proper planning—especially a will—is in place.

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.

Inheritance: Is Community Property or Separate Property Better?