What is the order in the succession of legitimate relatives
- The father and mother are succeeded first of all by legitimate and natural children in equal parts. Legitimate children and adoptive children are treated as legitimate children.
- The descendants category excludes all other relatives except the spouse. If there are no descendants, the parents or legitimate ascendants succeed, or adopters with special adoption: in this case the closest ascendant excludes the remote ones.
The rights of the surviving spouse
The spouse can hold the status of
- Heir, by purchasing the entire inheritance, when the deceased leaves no children, ascendants or siblings
- Co-heir, when co-heir with the legitimate, legitimized, adopted or natural children of the deceased, with the ascendants or brothers of the deceased.
- Remember that the surviving spouse has the right of residence in the marital home and the right to use the furniture in any case of competition.
The succession of legitimates
You should know that the law gives the members of the family unit the intangible right to a share of the assets, regardless of what the deceased may have established.
Who are the legitimate ones?
- The surviving spouse
- Legitimate children (including legitimized and adopted) and their descendants as they succeed by representation
- The natural children
- Legitimate ancestors
When there are legitimate heirs, two parts are distinguished in the hereditary patrimony:
- The available share, which the testator was free to dispose of;
- The legitimate share (or reserve), which the testator could not dispose of because it was due by law to the heirs.
When does legitimate injury occur?
There is damage to the legitimate when the share due to the legitimate is affected by the owner of the deceased as a result of acts of disposition inter vivos (donations) or dispositions mortis causa.
What can you do if you believe that the legitimacy has been harmed?
When the legitimacy is injured, it must be reinstated, through the action of reduction. The precondition for such action is the fictitious meeting. The fictitious merger is an accounting operation aimed at calculating the entire entity of the hereditary assets at the time of the opening of the succession, to establish whether the rights of the heirs have been harmed.
What is the reduction action and who can exercise it?
The reduction action is the action that has as its purpose the reinstatement of the legitimacy, through the reduction of the testamentary dispositions and of the donations exceeding the quota that the testator could have at his disposal.
The subjects entitled to exercise the reduction action are:
- The legitimate injured party
- The legitimate heir
- The successor in title of the heir
The reduction action is subject to a ten-year statute of limitations.
The community of inheritance
Are you the heir, with others, of an asset and do you want to proceed with the division?
You should know that when the deceased is succeeded by more heirs, they become co-owners of the assets that form part of the inheritance. Each co-heir can sell his share, but, in any case, must notify the sale proposal and the price to the other co-heirs, who have the right to be preferred at the same price. If the co-heir transfers his share to third parties and fails to notify the co-heirs in advance, they have the right to redeem the alienated share from the purchaser.
How does the community of inheritance end?
The community of inheritance ends with the division. Each co-heir has an imprescriptible right to division. The division in which all co-heirs do not participate is null. The forms of division are:
- Amicable or contractual division, which takes place, in the exercise of the power of private autonomy, with the modalities established by the co-heirs themselves, on the basis of unanimous consent;
- The judicial division
- The division of wills
What is collation?
Do you have a well-founded fear that the deceased made large donations to the other heirs during his lifetime? You must know that there is a remedy: collation is the act by which the legitimate, legitimized, adoptive and natural children or descendants, and the spouse of the deceased, who contribute to the succession, must confer to the active mass of the hereditary patrimony all the assets that were donated during life by the deceased, so as to divide them with the other co-heirs in proportion to their respective shares.
Are not subject to collation:
- Living expenses, education and sickness
- Ordinary expenses for clothing, weddings, education
- Donations made on the occasion of services rendered or in accordance with custom
- Things donated, perished, for reasons not attributable to the donee
- Small-value donations made to a spouse