Inheritance of cohabiting partner
In the absence of children, ascendants and siblings, the surviving spouse is entitled to the entire inheritance. A spouse divorced by a final judgment is excluded from the succession. In matters of de facto couples and civil unions, the law confers the same rights as those arising from the marriage bond.
Following the opening of the succession, the spouse may proceed with the relevant acceptance of the same inheritance, or the elements of tacit acceptance may become apparent. Tacit acceptance of inheritance may also be inferred from the conduct of the person called, whereas acts of a purely fiscal nature, such as the declaration of inheritance, such as the cadastral transfer, which is relevant not only from a tax point of view, but also from a civil point of view, are unsuitable for the purpose.
The surviving spouse’s right to inhabit the family home is commensurate with the situation existing at the time of the other spouse’s death. The surviving spouse’s right of habitation in the family home exists if the surviving spouse and the surviving spouse own or share the property, since in this case the legislator’s intention to ensure that the surviving spouse enjoys full use of the property to which the right relates cannot be fulfilled; in the latter case, the surviving spouse is not even entitled to the monetary equivalent of the right. The right of habitation, which the law reserves to the surviving spouse (Article 540, second paragraph, of the Civil Code), can only concern the property actually used before the death of the ‘de cuius’ as a family residence. The aforementioned right, therefore, can never extend to a further and different flat, autonomous with respect to the place of domestic life, even if it is included in the same building, but not used for the living needs of the family community, assumed on the basis of the needs of both of them living together permanently, organising the domestic life of the family group.
The surviving spouse is entitled to the survivor’s benefit together with the minor children, but also with the divorced spouse or cohabiting partner. The distribution of the survivor’s benefit between the divorced spouse and the surviving spouse, both of whom meet the requirements for the relevant pension, is based not only on the criterion of the duration of the marriage, but also by weighing further elements related to the institution’s solidaristic purpose, including the duration of pre-marital cohabitation, since cohabitation is not simply a criterion of the duration of the marriage relationship, but rather a distinct and autonomous legal importance, if the spouse concerned proves the stability and effectiveness of the pre-marital life community.