What Rights Do Siblings Excluded From a Will Have?

A person dies: what rights does his brother have over the inheritance?

Let’s consider the case of a person who, before dying, makes a will. In it, he only mentions his spouse, his child, and some friends. The testator’s siblings are not mentioned at all due to old disputes. What can the latter do to protect their expectations? What rights do siblings that are excluded from a will have? Do they have a right to the forced share?

In this article, we will see what is due to the deceased’s brother. But let’s proceed in order.

What Happens Upon a Person’s Death:

In Italy, the succession system provides for two main types of succession: testamentary and intestate

Testamentary succession is based on the provisions of the testator, while intestate succession applies in the absence of a will or for assets not included in it.

Let’s analyze them in detail.

Testamentary Succession and Forced Heirs:

If there is a will, siblings can be excluded from the testamentary succession. In fact, they are not considered forced heirs: that is, they do not have the right to a legally reserved share, unlike spouses, children, and ascendants.

Therefore, if a will excludes the siblings, they cannot claim anything. The law allows the possibility of completely excluding a brother from the inheritance, provided that there is a will.

The exclusion does not necessarily have to be expressed (“I, the undersigned, Mario Rossi, disinherit my brother”), but it can also occur tacitly, that is, by dividing all one’s assets among specific individuals without mentioning the brother among them.

Consequently, the excluded brothers cannot exercise the so-called action of reduction for infringement of the legitimate share, as they are not forced heirs. The action for reduction is reserved only for the forced heirs (spouse, children, ascendants) who see their rights infringed by the testamentary disposition or by donations made during the lifetime of the deceased.

Residual Inheritance:

If the will does not dispose of all the deceased’s assets, the residual assets can be divided according to the rules of intestate succession. In such cases, siblings can be called to inherit the assets not expressly assigned in the will, provided that the deceased did not have children. In fact, in the presence of children, the entire estate must be divided between them and the surviving spouse, if any.

Legal Succession of Siblings:

If the deceased did not leave a will, or if such a document does not dispose of all the assets, the legal succession opens. According to Article 570 of the Civil Code, in the absence of descendants (children, grandchildren), ascendants (parents, grandparents), or the spouse of de cuius, the deceased’s brothers and sisters are called to inherit in equal parts the entire estate. However, half-siblings (those who share only one parent) receive half the share compared to full siblings. (i figli degli stessi genitori).

If, on the other hand, the brothers and sisters compete with one or both parents of the deceased, all are admitted to the succession per capita (where the inheritance is divided into as many parts as there are heirs). However, in no case can the share due to the parents or one of them be less than half of the total inheritance.

When there are ascendants and siblings along with the spouse, the latter is entitled to two-thirds of the estate if it is shared with legitimate ascendants or with siblings, or with both. In this latter case, the remaining part (one third of the estate) is allocated to the ascendants and the brothers and sisters per capita (so the inheritance is divided into as many parts as there are heirs), except in any case for the ascendants’ right to one quarter.

What is Representation?

The children of siblings inherit “by representation” if the deceased’s sibling cannot or does not want to accept the inheritance. In practice, the share of the renouncing or predeceased brother goes to the deceased’s grandchildren.

Conclusion:

In summary, siblings excluded from a will do not have automatic rights to the legitimate share, but they can inherit the assets not disposed of in the will or according to the rules of intestate succession, in the absence of a will.

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