The variation in the value of hereditary assets from the initiation of succession to the point of division

The Supreme Court's decision No. 31125/2023, pronounced at the end of a long-standing dispute in inheritance matters, offers the opportunity to carry out an analysis of the institutions and remedies offered by the legal system to the heir who, as a result of the testamentary dispositions or donations made during the lifetime  of the de cuius, has been discriminated against in the distribution of the inheritance, with consequent infringement of one's legitimate share.

As is well known, the term 'legitimate share' refers to the portion of the inheritance legally set aside for specific individuals, the so-called legitimates (the children, the spouse and, in the absence of the former, the parents of the  deceased), and, in other words, represents the minimum share of the inheritance that  each of them, by virtue of the family relationship that bound him to the de cuis, is entitled to obtain.

It may happen, however, that as a result of the testamentary dispositions of the deceased or because of the donations made during the lifetime of the same, the legittimary is i) totally deprived of the share due to him by law, so-called pretermission, or (ii) injured in his own reserve share, receiving less than it would be entitled to receive. Consequently, the qualification that the legitimary assumes with respect to the inheritance is different: while, in the second case, in fact, the legitimary  is called to the inheritance, albeit limited to a share that is less than the legitimate share, thus retaining the right to accept or not the delata inheritance, in the first hypothesis, the pretermised legitimary cannot even be said to be a "called", as he is entirely excluded from the inheritance.

In both cases, the legitimator, whether injured or pretermitted, will be able to take action to protect his own reasons, exercising the action of reduction, delegated to safeguard and guarantee the legitimate share and having as its object the declaration of ineffectiveness of the testamentary dispositions (to the extent necessary to satisfy the legitimator’s claims) (1). In this case, he will be burdened with the burden of indicating the value of the estate as well as the value of his share of the legitimacy.

Preparatory to the determination of the value of the hereditary mass, is the so-called fictitious reunion, an operation designed to establish the net value of the inheritance through:

1. formation of the relict assets (c.d. relictum), including all the assets and rights belonging to the de cuius at the time of the opening of the succession, valued with reference to that time.
2. determination of the liabilities of the inheritance and subtraction of its amount from the value of the relictum;
3. determination of the donated assets, i.e., valuation (with reference to the time of the opening of the succession) of all the assets and rights attributed by the de cuius to anyone, going back in time without any limit.

Once the value of the estate has been determined, in order to define the amount of the share due to each heir, however, it is necessary to proceed with a further operation: to impute to his legitimate portion the donations and legacies made to him, unless he has been expressly exempted from them (2).

After determining the hereditary mass in this way, the value of which will be represented by the value that the individual assets and/or rights, which compose it, had at the time of the opening of the succession, i.e., at the time of the death of the testator, the share reserved for each legitimary is determined. If, as a result of the fictitious reunion, it emerges that the rightful share of any of the legitimates has been damaged, due to testamentary dispositions (if any) or the donations arranged during the lifetime of  the testator, the reduction of the the damaged allocations will be carried out according to the order established by law and, therefore, first the attributions in favor of the successors ex lege (3), secondly, the testamentary dispositions (for the part exceeding the available share, i.e. the share of the inheritance that the testator can freely dispose of) and, finally, the inter vivos donations disposed by the de cuius, in injury to the unavailable share, will be reduced.

For this purpose, and with specific reference to the value of the inter vivos donations, which may have been arranged by the de cuius, the value that the donated asset had at the time of the opening of the succession should be considered. The same applies  in the case where the de cuius  has disposed during his lifetime one (or more) indirect donations (4) which is configured, for example, in the case where the donor has provided the donee with the economic provisions for the purchase of a real estate property, with the specification, endorsed by the United Sections of Supreme Court (5), that the object of such  act of donation is represented by the real estate or, rather, by its value (and not by the sum of money, concretely, paid to the donee).

Following the successful outcome of the action for reduction, the injured legitimary or the pretermitted legitimary (specifying that the latter, in the meantime, will have acquired the status of heir, and, therefore, of communist of the inheritance for the share acknowledged to him) may request that the division of the hereditary community be carried out. The action for division, which may be brought together with the action for reduction (6), although subordinate to the successful outcome of the latter, may be brought by each of the co-heirs, at any time, and may concern only some of the community assets or the entire hereditary mass.

During the division, however, it is unnecessary to consider the value that the assets, constituting the community of inheritance, had at the time of the opening of the succession, as is the case for the purposes of forming the (injured or pretermitted) share of the legitimacy, being, instead, necessary to proceed with the updating of the estimate of the same on the date of the actual dissolution of the community, pursuant to art. 726 of the Italian Civil Code, which requires that reference must be made to their market value.

To sum up, therefore, it follows that:

• for the purposes of the action for reduction and, therefore, of the formation of the rightful share, as well as its possible integration in the event of injury, the value of the estate is calculated, through the so-called fictitious reunion, having regard to the value that the assets had at the time of the opening of the succession and this also with reference to inter vivos donations, if arranged.
• for the purposes of the division, and, therefore, dissolution of the community of inheritance, "the valutation of assets with a view of the divisional operations must be updated in the light of the changed value of the assets between the date of the opening of the succession and the date of the actual dissolution of the community of inherticance" (Cass. No. 31125/2023).

Lastly, it should be noted that the heir, injured or pre-terminated, is recognized as having the right to receive, pro quota, the fruits that the property, object of the community of inheritance, have produced from the time of the opening of the succession until the time of judicial completion of the relevant divisional operations.

The scope of such rulings assumes considerable importance, not only in the light of the issues dealt with, which often involve delicate family and interpersonal relationships, insistent between the heirs, but, also and above all, in the light of the timeframe that elapses between the time of the opening of the succession and the time in which the inheritance assets are divided among co-heirs, as seen in the specific case addressed by the Supreme Court in the aforementioned judgment, in which the division was only fully concluded last November 2023, in the face of a succession that opened back in 1985.

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(1)     This action may, if necessary, be accompanied by an action for restitution against the successor in title of the beneficiary of the deceased (already defendant in the action for reduction), in order to recover the assets due to the legitimate plaintiff.

(2)     Cass. No 12919/2012; No. 27352/2014.

(3)     These are those called to inheritance according to the provisions of the law, in the event of the absence of a will.

(4)     "The purchase of a property by a person with money from another person integrates the extremes of an indirect donation if the money, as consideration for the sale, is paid, in its entirety, by the donor to the donee for the specific purpose of purchasing the property or by direct payment of the amount to the seller. With the specification that the delivery to the donee, by the donor, of sums of money cannot be qualified as an indirect donation, because in this case, even if the money has been used for the purchase of a good, it is not paid in a case of indirect donation, but of direct donation of money" (Cass. Civ. 17604/2015).

(5)     SS. UU. No 9282/1992.

(6)     Cass. No. 19284/2019; Cass. No 4140/1992.