Forced Heirship in Italy: Avoiding the Conflicts

This briefing is part of our legal hub for Bilingual Estate Planning Lawyer in Italy | Succession & Trusts.

|:---| | Spouse only | 1/2 | 1/2 | | One child only | 1/2 | 1/2 | | Spouse + one child | 1/3 each (2/3 total) | 1/3 | | Spouse + two or more children | 1/4 spouse + 1/2 children (3/4 total) | 1/4 | | Two or more children, no spouse | 2/3 | 1/3 | | Ascendants only | 1/3 | 2/3 | | Spouse + ascendants | 1/2 spouse + 1/4 ascendants (3/4 total) | 1/4 |

These shares are absolute. They cannot be reduced by testamentary instruction. They cannot be circumvented by inter vivos gifts (which are subject to collazione recalculation). And — critically — they cannot be bypassed by placing assets into a foreign trust, as Article 15 of the Hague Trusts Convention provides an independent mandatory rules override.

Typical Conflicts with Common Law: The Survivorship Collision

A significant conflict exists regarding the concept of Survivorship. In common law jurisdictions, it is standard for property to be held as "Joint Tenants with Right of Survivorship," where the asset passes automatically to the survivor outside of the probate process. In the Italian legal environment, this concept is unrecognised. The portion of the property owned by the deceased is characterised as part of the formal estate and is subject to the mandatory shares of any children or parents. This can lead to a scenario where a surviving spouse is legally compelled to share their primary residence with the heirs, a result fundamentally at odds with common law estate planning.

The Lex Situs Classification Trap

The survivorship conflict is compounded by the rules of property classification under the conflict of laws. Dicey Rule 135 provides that the lex situs alone determines whether an asset is a movable or an immovable. This classification is critical because it determines which succession regime applies.

Several categories of property that English practitioners treat as "personalty" (movable) under domestic law are classified as immovables in the conflict of laws:

The practical consequence: an English estate planner who assumes that a leasehold interest in an Italian property is "personalty" governed by the law of the deceased's domicile will produce a plan that is defective. The leasehold is an immovable governed by the Italian lex situs, and the Italian forced heirship rules apply.

The Double Override: Brussels IV and the Hague Trusts Convention

Layer 1: Brussels IV

The Brussels IV framework (EU Regulation 650/2012) provides a procedural mechanism for mitigating forced heirship risks. Testators may formally choose the law of their nationality to govern their entire global estate. When executed with technical precision, this choice permits a person from a common law jurisdiction to apply their domestic rules of distribution, thereby effectively bypassing the Italian mandatory shares. However, this choice of law must be recorded through an explicit statement in a valid will and must be formally "published" by an Italian Notary to be effective against the local land registry.

Layer 2: The Hague Trusts Convention (Article 15)

Even where a Brussels IV choice of law has been made, if the testator has placed Italian-situated assets into a foreign trust, a second layer of forced heirship protection operates through Article 15 of the Hague Trusts Convention. This provision (given effect as Rule 183 in Dicey, Morris & Collins on the Conflict of Laws, 15th Edition) provides that the mandatory succession rules of the lex situs override the governing law of the trust.

Article 15(1)(c) specifically identifies "succession rights, testate and intestate, especially the indefeasible shares of spouses and relatives" as an area in which mandatory rules prevail.

This creates the double layer of protection for Italian heirs:

Against wills: Brussels IV allows mandatory heirs to invoke forced heirship unless the testator has made a valid choice of a foreign law.
Against trusts: Article 15 of the Hague Convention allows mandatory heirs to invoke forced heirship even if the trust is governed by a foreign law that does not recognise mandatory shares.

A common law practitioner who successfully navigates Brussels IV (by making a valid choice of English law) may still be caught by Article 15 if the estate plan involves a trust holding Italian assets. The trust does not provide a safe harbour from forced heirship.

The Re Ross Precedent: The Renvoi Escape That No Longer Works

A landmark illustration from Dicey concerns Re Ross (discussed at 24-068). An Englishwoman domiciled in Italy left different wills for her Italian and English properties. The Italian legittima was bypassed because the Italian court applied English law (as the law of the deceased's nationality under the old Italian private international law rules). English law then accepted the reference back — a process called renvoi — and applied its own distribution rules, which do not impose forced heirship.

This created a rare "escape loop" from Italian forced heirship: Italian law → English law (by nationality) → English domestic distribution → no forced heirship.

However, this loop is now largely closed. Under Brussels IV, Article 34 excludes renvoi for successions where the deceased has made a choice of their national law. If the testator chooses English law, English domestic law applies directly — there is no further reference to Italian law. The Re Ross renvoi loop operated under the old Italian PIL rules (Law 218/1995) and is no longer available under the Brussels IV framework.

A residual risk remains for testators who do not make a choice of law. If no choice is made, the default rule under Brussels IV is the law of habitual residence. If the deceased was habitually resident in Italy, Italian law applies — including forced heirship. There is no renvoi to save the estate from mandatory shares in this scenario.

Operational Case Considerations

The Survivorship Oversight Risk

Consider a couple from the UK who acquires real estate in Tuscany, assuming that the death of one partner triggers an automatic transfer of total ownership to the survivor. If no choice of English law is made in their wills, the heirs may initiate an Azione di Riduzione (Action for Abasement) to claim their statutory portion of the Italian property. This can force the survivor to liquidate the asset or pay a significant financial settlement to the heirs to retain the home.

The Lifetime Gift Recalculation

Consider a parent who transfers title to an Italian property to one child during their lifetime as a gift (Donazione). In the event of the parent's death, other mandatory heirs may argue that the gift infringed upon their future "reserved shares." Under the Italian Civil Code, gifts made during a lifetime are subject to collazione (re-calculation) into the final estate value. This can result in a court ordering the recipient of the gift to compensate the other heirs years after the original transaction was finalised.

The collazione extends not only to direct gifts of Italian property but also to indirect gifts — including the settlement of Italian assets into a trust at an undervalue, or the transfer of assets to a company in which one heir holds a disproportionate shareholding.

The Trust Clawback

Consider a UK-domiciled parent who creates a Jersey-law discretionary trust, transferring an Italian villa. The trust deed gives the trustee absolute discretion to distribute to any of the parent's children. One child is excluded from distributions.

The excluded child invokes Article 15(1)(c) of the Hague Trusts Convention before the Italian court. The court applies the Italian mandatory share rules. The trust's governing law (Jersey) gives way. The excluded child receives their share of the Italian villa, regardless of the trustee's discretion.

This is the scenario that most common law practitioners do not anticipate. The trust is not a safe harbour. Article 15 is an independent override that operates regardless of the Brussels IV framework.

The 2026 Regulatory Environment: Brussels IV

Current regulations under the Brussels IV framework (EU Regulation 650/2012) provide a procedural mechanism for mitigating these risks. Testators may formally choose the law of their nationality to govern their entire global estate. When executed with technical precision, this choice permits a person from a common law jurisdiction to apply their domestic rules of distribution, thereby effectively bypassing the Italian mandatory shares.

However, several conditions must be satisfied:

The choice must be explicit: A general reference to "the law of my country" is insufficient. The will must identify the specific national law chosen (e.g., "the law of England and Wales").
The choice must be in a valid will: An informal written statement or a letter of wishes is not sufficient.
The will must be published in Italy: An Italian Notary must formally "publish" the foreign will for it to produce effects against the Italian land registry and tax authorities.
Anti-renvoi language must be included: Without explicit anti-renvoi provisions, the chosen law may refer back to the lex situs (Italian law), inadvertently reinstating forced heirship.

The Italian PIL Statute: Law 218/1995

Art. 46 — The Nationality Rule (Now Largely Superseded)

Before Brussels IV, Italy's conflict of laws for succession was governed by Article 46 of Law 218/1995. This article provided that succession was governed by the law of the state of which the deceased was a national at the time of death. The testator could alternatively choose the law of the state in which they resided, provided they still resided there at death.

Crucially, Art. 46(3) contained a mandatory backstop: "The preceding provisions do not prejudice the exercise of the rights that Italian law attributes to forced heirs resident in Italy at the time of death." This meant that even under the old regime, Italian forced heirship protections could not be circumvented by relying on a foreign national law.

For deaths after 17 August 2015, Article 46 has been largely superseded by EU Regulation 650/2012 (Brussels IV), which shifted the primary connecting factor from nationality to habitual residence. However, Art. 46 remains relevant for pre-2015 deaths, third-country connections, and as interpretive context for understanding Italy's traditional approach.

Art. 16 — Forced Heirship as Ordine Pubblico Internazionale

Article 16 of Law 218/1995 provides the ultimate backstop: foreign law is disapplied if its effects are contrary to Italian ordine pubblico. Italian courts have consistently treated forced heirship as a matter of international public policy (ordine pubblico internazionale). This means that a foreign succession law that completely excludes forced heirship may be disapplied in Italy — even if Brussels IV would otherwise permit the application of that foreign law.

This creates a triple safeguard for Italian forced heirs:

Brussels IV Art. 35: The public policy exception within the Regulation itself
Hague Convention Art. 15(1)(c): The mandatory rules override specifically targeting trusts
Law 218/1995 Art. 16: The general Italian ordine pubblico control

The practical question is whether a partial exclusion of forced heirship (e.g., reducing the reserved share through a trust structure) would also trigger the ordine pubblico exception. The Cassazione has not definitively resolved this, but the weight of authority suggests that Art. 16 is reserved for cases involving the complete negation of the reserved share, not merely its reduction.

Art. 50 — Donations (Donazioni)

Article 50 of Law 218/1995 provides that donations are governed by the national law of the donor at the time of the donation. This is relevant because Italian forced heirship includes a collation (collazione) mechanism: lifetime gifts must be brought back into the estate for the purpose of calculating the reserved shares.

If a foreign donor makes a lifetime gift of Italian property, the question of whether the gift is subject to collation is governed by the law applicable to the succession (Brussels IV or Art. 46). But the validity and effect of the donation itself is governed by Art. 50. This creates a potential split: the donation may be valid under the donor's national law, but its effect on the reserved shares is determined by the succession law.

Professional Legal Considerations

Testators and heirs should secure a technical audit of all Italian-situated assets to determine the potential exposure to mandatory shares. The audit should address both the Brussels IV dimension (choice of law effectiveness) and the Hague Convention dimension (trust vulnerability to Article 15 override).

Proper administration involves the synchronisation of foreign and domestic testamentary documents to ensure that a choice of law is not only recorded but is also compatible with the formal requirements of the Italian Notary. Strategic management focuses on the utilisation of robust "Anti-Renvoi" clauses to prevent the common law scissionary system from inadvertently re-imposing Italian law on real estate holdings.

Where a trust is used to hold Italian assets, practitioners should be explicitly warned that the trust does not exempt the assets from forced heirship. The mandatory rules override under Article 15 of the Hague Trusts Convention operates independently of Brussels IV and cannot be circumvented by the choice of a trust governing law.

Practitioners should also be aware of the triple safeguard that Italian law provides for forced heirs — Brussels IV, the Hague Convention, and Art. 16 of Law 218/1995 — making Italy one of the most difficult jurisdictions in which to disinherit a forced heir.

Coordination with specialised succession counsel is a primary requirement for managing these jurisdictional collisions before they escalate into protracted inheritance litigation.

Ask the Succession Desk about Forced Heirship

Additional Notes for Professionals

The mandatory share system is established in Articles 536–564 of the Italian Civil Code. The English conflict of laws dimensions are derived from Rules 135, 140, and 183 of Dicey, Morris & Collins on the Conflict of Laws (15th Edition). The Italian PIL provisions are in Articles 16 (ordine pubblico), 17 (mandatory rules), 46 (succession — now largely superseded by Brussels IV), and 50 (donations) of Law 218/1995. The triple safeguard framework operates through Brussels IV Art. 35, Hague Convention Art. 15(1)(c), and Law 218/1995 Art. 16. The Re Ross renvoi precedent is discussed at Dicey 24-068.

[!TIP] Authoritative Links: For more on the classification of assets that determines which are subject to forced heirship, see our note on Movable or Immovable? The Hidden Classification. For the trust dimension, see Trusts in Italy 2026. For Brussels IV, see Brussels IV and Succession in Italy 2026.