Succession mortis causa in the changing family: evolution and limits of the Italian legal system


Autor: Antonio Albanese, Professore Associato, Alma Mater Studiorum Università di Bologna.

In the Italian Civil Code of 1865, succession due to death was regulated as one of the ways of acquiring property. The discipline was contained in title II, immediately after the title relating to employment. The modern legislator, in the 1942 Civil Code currently in force in Italy, dedicates a special Book to the phenomenon of succession. Title I of Book II, entitled “General provisions on inheritance”, contains the rules relating to succession in general, which apply to the two forms of succession due to death: legitimate and testamentary. The term “succession”, used by the legislator to give the title to the second book of the Civil Code (“Delle successioni”), literally derives from sub and cedere, and describes the assumption of the legal relationship of one subject to another. This means that a new relationship does not arise with respect to the successor, but rather it is the same relationship that continues unaltered as if the subjective modification had not occurred. On the contrary, it has been stated (CARNELUTTI) that the change of one of the subjects of the relationship could only result in the extinction of the original relationship and the taking possession of a new one. However, in this way the material identity is confused with the legal identity of the relationship, leading to identification of succession with novation; but the first is completely different from the second: the succession leaves the same relationship unchanged, despite the change of subjects. Furthermore, although the sufficiency of “any element, of the active subject or the passive subject, of the object or of the content, to exclude the identity of the modified relationship with the relationship existing before the modification” is undeniable, it must nevertheless be considered that “The affirmation of identity has a practical, not speculative, value: it aims to indicate the compatibility of the modification with the continuation of the existing relationship, that is, ultimately, with the conservation of the legal situation, except for the modification” (SANTORO PASSARELLI ).

Universal succession is expressly provided for only in succession due to death (art. 588 of the Italian civil code: “Testamentary provisions, whatever the expression or name used by the testator, are of universal title and attribute the status of heir, if they include the universality or a part of the testator’s assets”). It is a concept closely linked to the acquisition of a personal quality, to the transmission of a unified plurality of active and passive legal relationships. However, within the succession due to death, it is necessary to distinguish between universal succession and succession by particular title: the universal successor is only the heir, who succeeds in the “universality” of the rights and duties of the deceased; the legatee (“legatario”) only acquires certain rights, he does not become part of the community of heirs, but receives a fixed sum or certain material assets. The difference is not only quantitative, but also qualitative and objective in terms of the nature of the succession title:  universal succession implies the acquisition of the quality of heir, in relation to the acquisition of all the active or passive legal positions of the deceased and transmissible. Mortis causa succession differs from any other succession in that it is not limited to the succession of rights, but also includes the succession of obligations and possession. (This is valid, in effect, only for universal succession). There is succession in debts because, with death, one ceases to be a debtor: if there were no transmission to another subject, the debt would cease to be an obligation. Therefore, the debts that weigh on the deceased at the time of his death are transmitted by succession, including the interests derived from the debtor relationship matured after his death. Strictly personal debts and non-transferable debts are not transferred. There is succession in possession (with correlative attribution of possessory protection to the heir) because otherwise possessory protection would correspond to the first to take possession of the assets, giving rise to evident social disorder. The main political reason for universal succession, therefore, does not reside in the deceased’s ability to dispose of his assets after death (he does not always dispose of them or is in a position to do so); rather, it derives from the need to satisfy a public interest: the interest that the property does not become the prey of the first occupant and that the obligatory relations do not become extinct. It is about the social interest in avoiding the extinction of rights, in preventing the race to occupy the res nullius and the unjustified release of those whose assets were subject to bail. It can be deduced that the very figure of the heir is of public order and public interest; and in fact an heir can never be missing: if the testator has not designated him, the law will do so. It is understandable, then, that the law provides for an heir – who is determined by the opening of the legitimate succession – even in the extreme case that the testator has disposed of all of his assets by legacies. Furthermore, one is an heir, even if there are no assets to transfer, or if debts absorb assets, or if there are only debts.

The transmission of debts, although, unlike succession in possession, is not an inevitable element of universal succession (it is not found in the cases of heirs with the benefit of inventory and in those of inheritance transferred ex lege to the State) It is the most immediately perceptible aspect of the differentiation between universal succession and legacy. It is worth specifying: the Italian law, when it exempts the legatee from payment of inheritance debts (art. 756 of the Civil Code), does so without prejudice to the mortgage action of the creditors on the inherited fund, does not repeal the principle that only the heir succeeds to the debt; In effect, the legatee does not take charge of the debt, but is obliged to respond for the debt of others: “Il legatario che ha estinto il debito di cui era gravato il fondo subentra nelle ragioni del creditore contro gli eredi” (the legatee who has extinguished the debt takes over the rights of the creditor against the heirs). He is therefore treated in the same way as a third-party buyer of a mortgaged property.

Furthermore, even when the testator places the payment of a debt at the expense of the legatee, it is only the heir who remains personally liable, while for the legatee the debt has the nature of a burden on the thing, applying the art. 671 c.c.: “Il legatario è tenuto all’adempimento del legato e di ogni altro onere a lui imposto entro i limiti del valore della cosa legata” (the legatee is obliged to fulfill the legacy and any other obligation imposed on him within the limits of the value of the thing).

What has been said so far is summarized by the majority with the qualification of the heir as “continuer of the personality of the deceased.” The concept of personality that continues in a new subject has a mainly descriptive value, since it is rather, at a technical-legal level, about succession in the relationships, active and passive, that belonged to the deceased, if and to the extent that are transmissible. It is true that upon the death of the person a plurality of legally relevant interests come into consideration (SCHLESINGER): the interest of the heir, given by his concern, dictated by predominantly emotional reasons, to give an adequate location to his assets; the interest of his family; the interest of his creditors, who run the risk of not seeing his credit satisfied, both due to the eventual insufficient consistency of the asset, and due to the confusion of the hereditary assets with the personal assets of the heir; finally, the interest of the State in allocating the relictum for the benefit of the community.

The evolution of inheritance law has always gone hand in hand with that of family law; The incidence can be attributed to the fact that hereditary assets are destined primarily to the family, which has, over that assets, a right proportional to the intimacy of the family bond (BARASSI).

Furthermore, the link between property and family is established through inheritance. Respect for private property, guaranteed by art. 42 of the Italian Constitution, is not limited to the right of the owner to enjoy and dispose of the property while he lives, but extends to the right to transmit his property to third parties, relatives or strangers. In light of this, the other constitutional principle (art. 47) also makes sense, according to which the Republic encourages and protects savings in all its forms: this principle would not make sense if the individual’s assets were dissolved with his person. This explains why the same Italian Constitution, along with the right to property, also refers (art. 42, u.c., Constitution) to legitimate and testamentary succession and to the rights of the State over inheritances.

The inheritance rights claimed by the State, however, do not derive only from its inclusion among the legitimate heirs if there are no relatives within the sixth degree (articles 565 and 586 of the Italian Civil Code), but from necessity, especially when the hereditary assets benefit people outside the family community, to allocate the assets for the benefit of the community by adopting measures to tax them. These measures must be understood in relation to the basic principle of the social function of property, because they respond to the public interest of promoting the circulation of wealth and discouraging the excessive accumulation of family assets.

The last paragraph of art. 42 of the Constitution, when it talks about the limits of succession, it is connected to 2nd par., which refers to the ordinary law for determining the limits of private property. Thanks to universal succession, private property, from a purely individual and selfish right, acquires a value and a supra-individual dimension, which transcends the individual due to its capacity for survival: inheritance completes and integrates property, expanding its limits and surpassing selfishness, which is inherent, putting it at the service of the family community (L. FERRI). But the constitutional recognition of legitimate succession and testamentary succession, although linked to the recognition of private property, also means the protection of the specific needs that characterize its function: family solidarity and hereditary liberality (BIANCA).

It is the art. 457 of the Civil Code that explains, more than any other rule, the connection between succession mortis causa and the family: it establishes, in effect, that the distribution of assets, if not established by the person with an act of patrimonial autonomy (the will), is made by law in favour of subjects included in the heir’s family. The same connection results from the first paragraph of art. 536 of the Civil Code, which limits testamentary autonomy by attributing inheritance rights to heirs. In other aspects, the different breadth that the conception of the family community accepted by law presents in the regime of intestate succession and in the rules for the protection of heirs is evident: in intestate succession an expanded conception of the family subsists, responding to archaic patriarchal structures dominant in the peasant economy. The “legittimari” (“successione necessaria”), i.e. subjects who always have the right to a share of the hereditary assets (even against the will of the testator), are instead identified according to the criteria of the restricted family. The second conception reflects the image that the constitutional norm has of the family, when it guarantees the rights of a natural society founded on marriage (RESCIGNO). But a function of family interest, seen more closely, is normally also performed by testamentary succession: in most cases, the testator takes into account the needs, which he usually knows, of his family members (SANTORO PASSARELLI). It is pertinent – in light of the relationship between succession and family from a political-social point of view (hereditary law and family law, however, remaining quite different from a technical-legal point of view) – to argue that the Inheritance, therefore, builds a bridge between property and the family and tends to ensure the latter a material substrate, which is often perpetuated through the succession of generations (L. FERRI).

These traditional statements must face the new legal system arising from the law of May 20, 2016/76 (the so-called Cirinnà law), which clearly distinguishes civil unions (“Unioni civili”) and cohabitations (“Convivenze”), also in terms of succession profiles. Indeed, it can be said that from these profiles the legislative will to create two conceptually distinct disciplines emerges more clearly: the first, that of civil unions between people of the same sex, focused on the mirror legal protection of marriage; the second, that of cohabitation (indifferently between people of different sexes or between people of the same sex), which refers to private autonomy and the contract. In other respects, the profiles of the successors demonstrate that the “new families” are families for all purposes, despite the legislator’s childish effort to deny this inescapable conclusion for civil unions: the surviving party of the Civil union is a “legittimario” (c.d. successione necessaria) and is even the protagonist of the legitimate succession. It is enough to give him primacy in the family hierarchies. The valorization of the surviving part of the Civil union, with the recognition of the quality of intestate successor and the parallel expansion of the very strong protection granted by the necessary succession, responds to a feeling whose social diffusion is undoubtedly. The legal consideration of marriage and filiation relations responded to the transformation of the family from a community of production to a community of consumption, from a group dominated by the boss, husband and father, to a society of equals. Today, this fundamental cell, formed by the spouse and children, is enriched with a new figure, protagonist of a family model typified by the legislator: the figure of the “unito civilmente”.

As for Cohabitation, the aspect of inheritance is the one that has betrayed expectations the most, because little has changed compared to the past: the only real instrument for the preparation of the inheritance remains the will, along with the so-called post mortem acts. The Reform, for the most part, was limited to delegating to testamentary autonomy the solution of the new issues that arise from the evolution of social consciousness, almost as if coexistence were a casual biological aggregate and not a family based on a system of rules (E. DURKHEIM, De la division du travail social, Paris, 1893). For example, think of the unreasonable unequal treatment of a discipline that continues to deny the survivor’s pension to the more uxorio spouse, even in cases of long and uninterrupted cohabitation, but grants it to the divorced spouse so that “the effectiveness of the previous communion is exalted” (Cass., February 25, 2004, n. 3747). This solution is also confirmed in the regulatory context designed by the reform introduced by Law 76/2016 (Cass., labor section, November 3, 2016, n. 22318). It would then be said that what is an aphorism and parody for literature is valid for law: “Death in itself is not, for those who reflect on it, something as serious as marriage” (HUGO VON HOFMANNSTHAL, Buch der Freunde, 1922, trans. by G. Bemporad, Milan, 1981). The new law has not granted any right of succession to the “de facto cohabitant”, except as specifically provided for in paragraphs 42 to 44 of art. 1: for paragraph 42, in the event of the death of the partner who owns the common house, the survivor has the right to remain to live in that house for another two years or for the period of cohabitation if it is greater than two years, in any case no more than five years. If minor or disabled children of the surviving spouse live in the house, they can remain in the common house for at least three years. For paragraph 43, the right ceases if the surviving spouse establishes a new cohabitation or marries or forms a civil union. (To this right, paragraph 44 adds the right to take over the tenancy in the event of the death of the cohabiting tenant).

In short, at the succession level, the Reform raises perplexities when it limits the reference to civil unions to specific and limited succession institutions (paragraphs 20 and 21), while it is totally unsatisfactory when it leaves cohabitants in the limbo of “irrelevance”. There are many questions to which the Italian legislator will still have to answer. On a more general level, the interpreter will continue to address the insufficiency of a “necessary” succession (the succession of “legittimari”) which is characterized by a compression of private autonomy that is unbearable in the current era and which has no equal in Europe. Nor should we overlook the discontent, about instead the ab intestato succession, over the extension of the list of legitimate successors to the sixth degree, which does not respond to real needs of equity and justice. Finally, it is worth noting the regulatory vacuum that characterizes the so-called “recomposed” or “reconstituted” family, a term with which the doctrine indicates the phenomenon of family coexistence in which at least one of the members comes from a previous family experience, which can be a marriage (think of the widowers or divorcees), a cohabitation from which children were born, or even just a nucleus formed by a single natural parent and the child. With the 2016 Reform, the possibilities of new families that arise from the ashes of previous family relationships are further expanded and therefore the spectrum of hypotheses in which the children of a single member of the new couple (Civil union or Cohabitation) form emotional relationships with the new partner; such intense relationships, especially when it comes to very young children, that the other component of the couple is spoken of as a “social parent.” However, the regulation of the relationship between the biological child of one of the components and the social parent remains uncertain. Only recently a sensitivity of the Italian legislator on the subject begun to emerge: Law 19 October 2015, n. 173, which contains modifications to the law of May 4, 1983, n. 184, on the right to emotional continuity of children in foster care, regulates the coexistence of biological parents and those who, by virtue of periods of temporary care, have significant close relationships with the minor. But this debate on adoption is still immature, despite the first jurisprudential recognitions. The issue also manifests its seriousness in hereditary matters, since the relationships between the interested parties can be classified, depending on the case, in the same way as strangeness or at most affinity… and the Italian inheritance law does not consider affinity. Seen more closely, the only instrument (outside the will) that could give legal relevance to the social relationships established within recomposed families is adoption in particular cases.


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