This briefing is part of our legal hub for Inheritances: Digital & Global Assets.

Brussels IV and Succession in Italy: The Regulatory Path

The European Succession Regulation, widely known as Brussels IV, provides the fundamental framework for determining the law that governs an estate. For non-EU citizens with assets situated in Italy, this regulation is the primary instrument for managing the cross-border transition of wealth, yet it contains specific procedural traps for individuals from common law jurisdictions.

The Legal Framework: EU Regulation 650/2012

The foundation of the regulation is established in EU Regulation 650/2012. It institutes the general rule that the law of the country of the "Habitual Residence" of the deceased at the time of death applies to the entirety of the estate. However, the regulation permits a testator to formally choose the law of their nationality to govern their succession instead. This choice must be explicitly stated in a will to be formally recognized by an Italian Notary.

Typical Conflicts with Common Law

A significant conflict exists regarding the "Third-State Scission." Common law jurisdictions, such as the United Kingdom or the United States, frequently utilize a scissionary system where immovable property (land) follows the law of its location (lex rei sitae), while movable property follows the law of the deceased's domicile. Italy, through Brussels IV, aims for the unity of the estate under a single governing law. This creates a procedural loop where a choice of English law may refer back to Italian law for real estate situated in Italy. Without the inclusion of specific anti-renvoi provisions, this loop can inadvertently reinstate the Italian forced heirship rules that the testator intended to circumvent.

The 2026 Regulatory Environment

The 2026 standards have clarified the implementation of the European Certificate of Succession (ECS). This certificate is designed to serve as a legal passport for heirs across the EU, yet its interaction with a foreign Grant of Probate remains a source of administrative friction. In the Italian system, the Notary acts as the mandatory gateway to the land registry; they frequently require a formal "publication" of the foreign will in Italy before the ECS can be utilized to transfer property titles.

Operational Case Considerations

The Habitual Residence Trap

Consider a retired professional from the UK who resides for seven months a year in Italy but maintains a physical home and banking assets in London. Upon death, if no choice of law is made, the Italian state may determine the individual was habitually resident in Italy. Consequently, the entire estate—including the London-based assets—becomes subject to the strict Italian mandates of forced heirship, a result often unintended by the deceased.

The Renvoi Loop Failure

Consider a US citizen with real estate in Tuscany who makes an explicit choice of their home state's law in their will. If that chosen US law stipulates that real estate must follow the law of the place where it sits, an Italian Notary may determine that the case has "referred back" to Italian law. Without an anti-renvoi clause, the distribution follows the Italian statutory shares, potentially leading to a dispute among the heirs that contradicts the terminal intent of the testator.

The Conflict of Laws Dimension: Non-Recognition of Foreign Land Judgments

The Brussels IV briefing would be incomplete without addressing a critical counterpoint from the English conflict of laws. While Brussels IV aims to create a unified succession regime within the EU, the interaction with English law introduces a hard jurisdictional boundary.

Rule 138 — The Moçambique Rule

Under Dicey Rule 138 (Dicey, Morris & Collins on the Conflict of Laws, 15th Edition), English courts generally refuse jurisdiction over disputes concerning title to foreign land. This is the "Moçambique Rule" (from British South Africa Co v Companhia de Moçambique [1893] AC 602). English courts will not determine the title to, or right to possession of, Italian immovable property.

The practical consequence: if an Italian court determines that a specific heir is entitled to Italian land under forced heirship, and that heir also seeks to enforce the same claim against English land, the English courts will refuse jurisdiction over the Italian land component. The Italian land question must be resolved in Italy.

However, the in personam exception (Exception (a) to Rule 138) permits English courts to act against a person within England in respect of obligations arising from contract, equity, trust, or fiduciary relationship — even if the subject matter concerns Italian land. This exception is the doctrinal basis for claims in the English courts arising from fraud, breach of contract, or trust obligations connected to Italian property.

Rule 139 — Pescatore v Valentino

The reciprocal principle is equally important. Rule 139 provides that English courts will not recognise or enforce foreign judgments in rem regarding English immovable property. This was applied directly to an Italy-England dispute in Pescatore v Valentino [2021] EWHC 1953 (Ch.), where the English High Court refused to recognise an Italian judgment affecting English real estate.

The practical consequence for Brussels IV successions: if an Italian court applies forced heirship rules under Brussels IV and issues a judgment affecting English property, that judgment will be unenforceable in England. The Italian heir must separately establish their entitlement through the English probate system.

This creates a "two-track" reality. Brussels IV governs the Italian assets. The English conflict of laws governs the English assets. No single judgment or certificate can resolve both.

The Italian PIL Statute: Law 218/1995

Art. 46 — The Superseded Italian Rule

Before Brussels IV, Italy's succession conflict of laws was governed by Article 46 of Law 218/1995: succession was determined by the law of the deceased's nationality at death. This was fundamentally different from the English approach (domicile) and created a nationality–domicile gap in Italy-UK successions. An English national domiciled in Italy was subject to Italian law under Art. 46 (nationality = English), but would be subject to English law under the English domicile test. The two systems pointed in opposite directions.

Brussels IV resolved this for post-2015 deaths by introducing habitual residence as a third, unifying factor. But the shift was partial — the UK is not bound by Brussels IV, and English courts continue to apply the domicile test. The result is that the nationality–domicile gap has been replaced by a residence–domicile gap that is narrower but still operative.

For pre-2015 deaths and for connections to third countries outside the EU, Art. 46 remains the governing provision.

Art. 64 — Automatic Recognition of Foreign Judgments

Article 64 of Law 218/1995 introduced a revolutionary change in Italian PIL: automatic recognition of foreign judgments without the need for exequatur proceedings. A foreign judgment is recognised in Italy if it satisfies seven conditions:

The foreign court was competent under Italian jurisdictional principles
The defendant was properly served
The parties appeared or were lawfully declared in default
The judgment is final (res judicata) under the law of the issuing state
The judgment does not conflict with a prior Italian judgment
No proceedings are pending in Italy between the same parties on the same matter
The judgment is not contrary to Italian public policy (ordine pubblico)

This last condition — public policy — is the critical lever for succession cases. If a foreign succession judgment allocates an estate in a manner that completely excludes forced heirship, an Italian court may refuse recognition under condition 7. Combined with Art. 16 (the general ordine pubblico control), this creates a dual filter: the Italian courts will not recognise a foreign succession judgment that fundamentally violates the mandatory share system.

However, the practical interaction with Brussels IV successions is nuanced: Art. 64 applies to judgments from third countries (including the UK post-Brexit). Within the EU, the Brussels IV Regulation itself governs recognition and enforcement of succession judgments (Chapter IV, Arts. 39–58).

Art. 13 — Renvoi and the Brussels IV Interaction

Italy accepts renvoi under Art. 13 of Law 218/1995, but Brussels IV has its own renvoi provisions (Art. 34). Where Brussels IV applies, Art. 34 governs; where it does not (pre-2015 deaths, third-country connections), Art. 13 applies. The interaction is important: under Art. 34 of Brussels IV, renvoi is accepted if the designated third-state law would refer back to a Member State's law — potentially reinstating Italian forced heirship. This is the "renvoi loop" that anti-renvoi clauses are designed to prevent.

Cross-Border Technical Coordination

Managing the "two-track" reality of UK-Italy successions requires specific technical coordination between the common law and civil code frameworks:

The effective resolution of the estate depends on coordinating the English Probate application and the Italian Declaration of Succession simultaneously to prevent the "authority-capacity gap" where assets are legally won but practically unreachable.

Ask the Succession Desk about Brussels IV

Additional Notes for Professionals

Brussels IV is EU Regulation 650/2012. The Italian PIL provisions are in Articles 13 (renvoi), 16 (ordine pubblico), 46 (succession — now largely superseded), and 64 (automatic recognition of foreign judgments) of Law 218/1995. The non-recognition of Italian judgments affecting English land is established in Rule 139 of Dicey, Morris & Collins on the Conflict of Laws (15th Edition), applied in Pescatore v Valentino [2021] EWHC 1953 (Ch.). The Moçambique Rule is stated in Rule 138.