Inheritance: Is It Mandatory to Treat All Children Equally?
If a parent favors one child with a donation, can the other contest it?
A parent is considering donating a substantial sum to one of their two children, creating an imbalance in the overall inheritance. Is this permissible? Must children be treated equally in inheritance matters?
Can Parents Treat Children Differently Regarding Inheritance and Donations?
Italian law does not require parents to treat all children equally in terms of donations or inheritance. The Civil Code mandates only that a minimum portion of the estate, the “legittima,” be left to the children. This reserved share cannot be denied, even through a will. Therefore, disinheriting a child is prohibited as it would deprive them of their legittima.
The legittima ensures each child receives at least a portion of each parent’s estate. The heirs entitled to the legittima (legitimate heirs) include the spouse, children, and, in the absence of children, the parents of the deceased. Beyond this, the remaining portion of the estate—the “quota disponibile”—can be freely allocated, even to one of the legitimate heirs.
A parent can, therefore, treat children differently by leaving one only the legittima and giving the other both the legittima and part or all of the quota disponibile. This can be done through donations or the will itself.
Reserved Shares for Children:
- If there is a spouse and one child: 1/3 to the spouse; 1/3 to the child; 1/3 is available.
- If there is a spouse and two or more children: 1/4 to the spouse; 1/2 to the children; 1/4 is available.
- If there is only one child (no spouse): 1/2 to the child; 1/2 is available.
- If there are two or more children (no spouse): 2/3 to the children; 1/3 is available.
If a donation does not infringe on the legittima of another child, it is legitimate. However, if it does infringe, the disadvantaged child has the right to contest the donation to claim their rightful share. This contestation can only occur after the parent’s death and must be within ten years.
The contesting heir must consider not only the inheritance received but also any prior donations made by the parent, as these also count towards the calculation of the legittima.
Conclusions:
A parent may choose to donate part of their estate to one child during their lifetime, provided it does not reduce the legittima of the other heirs. Similarly, a parent can bequeath more to one child through a will, as long as the legittima of the other children is satisfied. If the legittima is compromised, the donation or will can be contested.
VGS Lawyers is a law firm specialised in Italian Inheritance and Italian Wills. In case you need assistance please contact info@vgslawyers.com