Inheritance rights of common law partners

Bill Image
07/31/2009 - 08:12

 Someone asked about this on another thread.  So how do inheritance rights of common law partners work in Italy?



 Just to fill it out a bit - the only thing to do is make a will, and then you can leave what you like to who you like.  Otherwise there is a very complicated list of who gets what starting with children and spouse and going on to 3rd cousin twice removed.  You can make a short will saying you want everything to be done according to your country of citizenship, and thats the only way to include 'significant others'!

 Ram is right that the safest thing you can do is ensure both you and your partners have wills. If you are British citizens, you are entitled leave what you like to who you like in a will, even your Italian property.   If you are British citizens but die without leaving a will, English law of intestacy will apply, which is slightly different to Italian intestacy law and usually does not reach the 3rd cousin twice removed. The UK government would get hold of the estate before it got that far!Italian citizens would not have this freedom,  if they died without a will the common law partner would get nothing, and Italian intestacy law would apply. if they did make a will, they would be forced to leave a large proportion of the estate to the "legitimate heirs", which could be for example previous wife (if not divorced) and children. The common law partner may end up with a third or a quarter share (la quota disponibile). If they were left more than this, the legitimate heirs would certainly challenge the will and claim their legal share.There may be cases where partners do not wish to leave the property owned by one, to the other in their will, perhaps as they have children from a previous marriage. They could set up a right of "usufrutto" before a Notary for the partner to have the right to live unchallenged in the property for the rest of their lives, even if the children/heirs later decided to sell on the nuda proprieta leaving them in residence. 

 but requires more expansion if its to be regarded as useful for non formally married couplesunder the present government Renata Brunetta (the very short minister)has this proposal because there have been serious problems in modern times over people that have lived together not even being allowed into hospitals to visit their co-habitees...let alone signing release forms for operations of today in many regions of Italy there are already registers where couples can make a formal decleration of the state of  coppia/famiglia di fatto  these include regions such as Abruzzo,Marche ,Lazio...and also various municipal areas... although not nationally recognised they have some force in making the rights of cohabitees fixed ...say in at least the right if one member of a couple dies to continue living in the family home...the new proposed legislation will formalise this even more... but there is very vocal oposition from the Vatican and the CEI... who say this will destroy the family...sort of ignoring the fact that there are as many families living here as most other european countries without either a formal civil or religous fact the last Prodi government was trying to force through legislation on this but although it did not bring it down it helped fuel major arguements within and was a major contribution .... the other major party as a whole that opposes this is Cassinis UDC ... strongly aligned with the Vatican and the sanctity of the family he is a strange preacher in this respect as his now family is not his first ...and before his cange to the catholic right he was the head of a family that had not been formalisedanyway search on coppia di fatto... and you will get much more ... am sure there will be legal advice following which will help clear up some questions...sorry as formalised couple the problem has held slight interest other than the fact that i regard it as against human rights to discriminate in this sense against peoples choices so have watched the fights and tears as the vatican tries to retain its hold on italian civil law with its usual tenacity and propaganda of the apocolypse if human rights are accepted over religous dictates....i would also say that if you live in Italy have any extra family problems and you live in one of the italian regions that allow a regsitration it would be well worth not only making the will Ram says... but go along and see if it can be formalised ... i know defeats the point of your free thinking... but maybe better to think of your home and retaining it above your principles... and its just a bit of paper... Tuscany,Umbria,emilia romagna,campania,veneto,puglia, as mentioned abruzzo,marche and lazio.... they are the regions already registering co habitation (.registro delle unioni civili) ... much of this is aimed at same sex couples... obviously they campaign harder because their rights are even more limited ... but it it open to all

I once read that holding an Italian property through a limited company registered in the UK would mean that at death the inheitance issues would surround the shares and not the property. is this correct? I realise that there would probably be other drawbacks to this particular suggestion.

I am in Italy for a few days and saw you post.What you are asking is not a simple question: I would reccomend this book to you:How to avoid Inheritance Tax by Carl Bayley BSc ACA published by Tax Cafe £24.95 IBSN 978-1-904608-95-0An extremely easy book to read!  It has already saved me a great deal of potential IHT!Do not forget that the Prodi Government brought back IHT in Italy, but it is significantly more generous than UK IHT. Getting my Italian property potfolio taxed under Italian IHT is proving almost impossible, the UK taxman will not let go!DIY IHT planning could be costly after reading the book my advice is to employ a Tax accountant. Happy reading! 

I know the law is not absolutely clear cut, understand the apparent "ping pong" resulting from Italian law and the "Denning ruling inn the UK"    and appreciate the changes mooted by the EU proposals on harmonisation.I am hoping that Charlotte reads this and can give her view of what would be the best route for a couple in the following position.

  1. Couple both UK Citizens in "common law" relationship both divorced and both with children over the age of 18 in the UK
  2. Own UK property in joint names.
  3. Own house in Italy in joint names.[by property I am referring to immovable assets - to be clear]
  4. Both have a UK will which leaves properties to each other - some provision for children [though all adults as mentioned above]. UK wills do not specifically mention Italian property.
  5. Not sure if this has a bearing on the inheritance issue - but currently the tax position is that both are taxed in UK [position clarified by Accountant], but are regarded as resident by Italian commune.

My question/s:What action if any,  do both need to take in respect of their wills [either in UK or Italy]  to ensure that the Italian property is transferred to the surving partner.   What is the current position if no action is taken?   Will the UK wills on their own suffice? Hope that there is a straightforward answer! Thanks in anticipation.     

The basic answer is simple - your UK wills which deal with all your worldwide property are perfectly valid in the UK and Italy.English law will apply to your succession. English law (freedom of disposition) allows common law partners to leave their estate to one another (an Italian citizen would not be able to do this).The ping pong situation (ie the rights to the Italian property) could be raised by a person who challenged your will, but it is impossible to predict how a court would deal with this, it would turn on its own facts, but it is highly UNLIKELY that a claim would succeed.If you are deemed domiciled in the UK, IHT will be charged on your worldwide assets. Italian IHT will also be charged on the Italian property but you would reclaim this from the IHT paid in the UK under the double taxation treaty.It is sometimes preferable to have a separate Italian will, in Italian, to enable the probate procedure in Italy to be dealt with more efficiently by your heirs. However you can leave things as they are and still have peace of mind.Charlotte    

Charlotte - a million thanks for this clear answer.  We will consider making an Italian will in due course [I realise that the unexpected can happen at an point] but am reassured that our UK wills are valid for the time being.