The inheritance of the cohabiting partner

In Italy, the surviving spouse or partner of a civil union has the right to inherit the estate of the deceased person, as well as to live in the family home and use all the furniture. If there are no children, ancestors, or siblings, the entire inheritance goes to the surviving spouse, even if they are separated, as long as there is no blame. The right of the surviving spouse also includes the right to live in the family home and use all the furniture. While, a spouse who has been divorced by final judgment is excluded from succession.

The law n. L. n. 76/2016 has also provided couples in de facto relationships and civil unions with the same rights as those deriving from a marital bond.

The surviving spouse may proceed with the acceptance of the inheritance, either tacitly or explicitly, following the opening of the succession. Tacit acceptance of the inheritance can be deduced from the behavior of the person called to inherit who has carried out a series of acts incompatible with the intention of renouncing or who are conclusive and significant in the intention to accept the inheritance. However, it cannot be deduced from purely fiscal acts, such as the declaration of succession.

The right of the surviving spouse to live in the family home is linked to the situation that existed at the time of the other spouse’s death. This right only applies if the property is owned by the “de cuius” or is held in common between the deceased spouse and the surviving spouse. It does not apply if the property is held in common between the deceased spouse and a third party, as the intention of the legislature to ensure the surviving spouse’s full enjoyment of the property cannot be realized in this case.

The right of the surviving spouse to live in the family home, as established by article 540 of the Italian Civil Code, can only apply to the property that was used as the family home before the “de cuius” died. It does not extend to another and different apartment, even if it is in the same building and not used for the family’s living needs. The object of the right to live in the family home upon the death of a spouse is the property in which the spouses lived together, determining it according to their mutual agreement and the needs of both.

The surviving spouse is entitled to a reverse treatment pension, which may be shared with minor children, divorced spouses, or unmarried partners. The division of the reverse treatment pension between the divorced spouse and the surviving spouse, both of whom meet the pension’s requirements, is based on the duration of the marriage, as well as other elements related to the solidary purpose of the institution. This includes the duration of the premarital cohabitation, recognizing that cohabitation is not merely a corrective measure but a distinct and autonomous relationship.