In today’s guide, we will try to clarify everything concerning the legitimate inheritance, as well as that portion of the patrimony which, by law, belongs only to some relatives of the deceased. In fact, as we shall see, it is not enough for there to be a will for the legitimate inheritance to be questioned.
On the contrary, the non-respect of the relative quotas can lead to the challenge of the will by the injured heirs. Therefore, it is very important to know what legitimate inheritance is, to whom it belongs and, if it is not respected, what are risks can be faced.
When do we talk about legitimate inheritance?
To understand when we are talking about legitimate inheritance and when not, it is advisable to know the difference between testamentary succession and legitimate one. Given the terminology, you might think that legitimate inheritance is that relating to legitimate succession, but it is just the opposite.
We speak of legitimate inheritance in the face of testamentary succession, or that regulated by the will of the deceased left within a will. In fact, the term “legitimate inheritance” does not mean anything other than the legitimate share that belongs to the legitimate heirs.
This quota, which we can also call a reserved quota, is guaranteed by law to the closest relatives of the testator (legitimate or reserved):
This means that the testator cannot freely dispose of his assets, but only the available share. On the latter, he will be able to express his wishes without any limit or impediment.
On the other hand, however, we have legitimate succession, which occurs only when the deceased has not left the will. In this case, therefore, the inheritance is divided as required by law, with particular attention to article 565 of the Civil Code.
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Legitimate inheritance and the shares to the legitimate
As we have seen, when we talk about testamentary succession, the figures of the legitimate heirs who are entitled to the legitimate share takeover. However, it should be emphasized that the law requires a very precise division of the inheritance, based on the degree of kinship between the heirs and the deceased.
For example, the legitimate share due to the spouse is not the same as that due to the ascendants. Or, if the deceased leaves two children together with his spouse, how is the legitimate share divided?
Family situations can be very different from each other, and it is precisely for this reason that the law regulates them from the first to the last. Let’s see them together, always taking into consideration that the other part of the inheritance represents the available share:
- Spouse: 1/2 of the inheritance;
- Spouse with a child: 1/3 to the spouse and 1/3 to the child;
- Spouse with two or more children: 1/4 to the spouse and 1/2 to the children to be shared equally;
- One child only: 1/2 of the inheritance;
- Two or more children: 2/3 of the inheritance to be shared equally;
As regards the legitimate inheritance to the parents, the latter operates only in the event that the deceased has no children:
- Parents without a spouse: 1/3 of the inheritance;
- Parents with spouse: 1/4 to parents and 1/2 to the spouse.
It should be borne in mind that the surviving spouse, in addition to half of the inheritance, also has the right of residence in the house in which he lived with the deceased.
Legitimate share injury: how to intervene?
As anticipated in the introduction, if the respective quotas are not respected in the will it is possible to run into complications. In fact, legitimate heirs who see their legitimate inheritance harmed can come forward through the reduction action.
The latter represents a form of protection which the right-holders can dispose of if the deceased’s will undermine what is rightfully theirs. The legitimate inheritance can be damaged both through the will contained in the will and through the donations made during the life of the deceased.
In the first case, therefore, the injured person has the right to act in reduction against the will. In the second case, on the other hand, we speak of a reduction action against donations, which usually comes into play when the reduction action does not manage to reinstate the legitimate inheritance of the right holder.
Therefore, when a person decides to write their will, it is important that they do so following what is required by law. In this way, his wishes can be respected and, at the same time, the heirs will not find themselves having to take action to see their legitimate inheritance respected.