When a spouse passes away, one of the most immediate and sensitive issues is not only inheritance, but also something far more practical: what happens to the home the couple lived in.
Italian law offers strong protection to the surviving spouse through the right of habitation in the family home, but this protection is not absolute. A key ruling by the Court of Cassation (Cass. no. 15000/2021) clarified an important limit: in some cases, the right simply does not arise.
Understanding when this right applies is essential, especially in blended families or situations involving co-owned property.
What is the right of habitation for the surviving spouse? Under Article 540 of the Italian Civil Code, the surviving spouse automatically receives:
- the right of habitation in the family home
- the right of use over household furniture
These rights apply by law, meaning they arise automatically at the moment of death without the need for acceptance or a will. In legal terms, they are considered legati ex lege, or statutory legacies (Cass. civ., Sez. II, no. 4329/2000).
However, the spouse may still choose to renounce them.
Which home is protected by law?
Not every property owned by the deceased is covered.
The protection applies only to the family residence, meaning the home where the couple lived together in a stable and habitual way.
This excludes:
- second homes
- holiday properties
- other residences not used as the main family life center
The purpose of the law is clear: to protect continuity of living arrangements, not property ownership in general (Cass. no. 4088/2012).
Does the surviving spouse lose part of the inheritance? No. In fact, the right of habitation is added on top of the inheritance share. This means the spouse:
- keeps their legal inheritance share
- and also receives the right to live in the family home
However, the value of this right is taken into account when calculating the estate division. In practice, it is treated similarly to a pre-legato, reducing the available estate before division among heirs (Cass. no. 4847/2013).
If necessary, its value is charged first to the disposable portion, then to the spouse’s share, and finally, if needed, to the children’s shares (Cass. no. 26741/2017).
When does the right of habitation NOT apply? This is where the recent case law becomes crucial.
Article 540 requires that the home be owned by the deceased or jointly owned. The Court of Cassation (Cass. no. 15000/2021) clarified how this must be interpreted.
The right applies when:
- the home is 100% owned by the deceased spouse
- the home is co-owned between the spouses
But the right does NOT apply when:
- the home is co-owned between the deceased and a third party (for example, a sibling or unrelated co-owner)
Simple example
If a house is owned by the deceased and their brother, the surviving spouse does not automatically acquire the right to live in the entire property. The law protects only ownership structures internal to the marriage.
What if the spouses were separated?
In case of legal separation, the right of habitation does not arise.
The reason is simple: the law protects the family home, and separation removes the factual basis of a shared family residence (Cass. no. 13407/2014).
This applies even if the separation was not caused by fault.
Can the right be sold or transferred?
No. The right of habitation is strictly personal.
Under Article 1024 of the Civil Code, it:
- cannot be sold
- cannot be rented
- cannot be transferred to others
It ends automatically upon the death of the surviving spouse.
In addition, it cannot be used like ordinary property rights. It exists solely to guarantee housing protection, not economic advantage.
Who pays taxes on the property?
The surviving spouse who holds the right of habitation becomes the sole taxable subject for the property.
This affects:
- income tax (IRPEF rules)
- property taxes such as IMU
Legal references confirm this fiscal responsibility (Art. 26 D.P.R. 917/1986 and Art. 1, paragraph 743, Law 160/2019).
If the right does not arise, taxation remains divided among the heirs according to ownership shares.
Conclusions
The right of habitation is one of the strongest protections granted to a surviving spouse in Italian inheritance law, but it is not automatic in every situation.
Its application depends strictly on how the property is owned and on the existence of a genuine family residence.
In practice, the difference between full protection and no protection at all can depend on one detail: who legally owns the house together with the deceased.
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