HEREDITARY SUCCESSION. - Succession, taken in its most general legal sense, indicates any transfer of rights from one subject to another. It can be extended to all the transferable rights of a subject, and then there is a succession by universal title, or it can be limited to some of those rights, and there is succession by particular title.
If it is destined to take effect while the holder of the rights is still alive, one speaks of succession inter vivos; if, on the other hand, it opens after the death of the holder, it is s. mortis causa. This can be either by particular title, the legacy (v.), or by universal title, the inheritance. The s. e., in turn, in relation to the legal cause on which it depends, is distinguished into: testamentary succession (v. TESTAMENTO), legitimate or ab intestato succession.
Legitimate succession occurs by the will of the law, which gives effect to the presumed will of the deceased; testamentary succession, on the other hand, is determined directly by the will of the deceased, duly expressed. The law establishes the manner in which that will must be manifested, that is, it assigns the form of this important juridical act and can require it ad validitatem.
I. INHERITANCE SUCCESSION IN NATURAL LAW
Inheritance succession is without doubt today the most important of the modes of acquisition. Until Pufendorf (1632-94) all jurists recognized a natural foundation for the right of inheritance succession, whether it concerned testate or intestate succession. The principle that guided them was the celebrated principle of Roman law "Nothing is so consonant with natural equity as to recognize the will of the owner who wishes to transmit his goods" (De iure nat. et gent., 1, 4, c. 3). Pufendorf began by denying the natural foundation of dispositions of last will, and above all of the testament, while continuing to recognize it for intestate successions. Followers of Pufendorf's thesis were not lacking even among the Catholics of the 17th century (Schwarz, Schmalagrueber, Zollinger). Today the thesis is defended by all legal positivists and is extended to the whole of inheritance law. The State is the source of all law and therefore has no limit in regulating this matter, concerning succession in hereditary goods.
Among theologians, on the other hand, there has been continuity of doctrine. In fact, in their great majority, both in antiquity and today, they have ranged themselves in favor of the origin of the right of inheritance succession from natural law. For the most part they do not consider the argument directly, which is however clearly presupposed, as an undisputed foundation, in the treatment of the thorny question of the validity or otherwise of the informal testament. Some, such as St. Antoninus, Molina, Lessius, hold that the informal testament creates a true natural obligation; others such as Soto, Billuart, Sanchez hold it valid by force of the natural obligation up to the sentence of the judge; others, finally, Vasquez, Bonacina with innumerable followers, hold such testaments invalid, not because the sole source of inheritance law must be sought in positive law, but because they admit that the power of the civil legislator extends to the invalidation of the testament for defect of form. The nature of the right of inheritance succession is therefore for all these authors beyond discussion: it is a natural right: viewpoints diverge on the extent of civil power in the regulation of this institution.
Consonant with them is the doctrine of modern theologians, who are led to reaffirm this principle with greater force in order to combat today both the enemies of private property and those of family stability, and not least those who affirm an unlimited power of the State in this matter. A reference to the natural origin of the right of succession can perhaps be seen in two Pauline texts "si... filii et heredes" (Rom. 8, 17; cf. also Gal. 4, 7); but it is in the ecclesiastical magisterium and above all in the social encyclicals that the question is addressed with a certain breadth and with arguments that reason is compelled to admit as a requirement of another natural right, that of private property (v.). "By the inviolable law of nature," says Leo XIII, "the maintenance of offspring is incumbent upon the father; and by the impulse of the same nature, which makes him discern in his children an image of himself, and as it were an expansion and continuation of his person, he is moved to provide so that in the difficult course of life they may honestly meet their own needs, a thing not possible to obtain except through the acquisition of fruitful goods, which he then transmits to them as an inheritance" (Denz-U. 1938 a; cf. also Pius XI, encyclical Quadragesimo anno, n. 16: AAS, 23 [1931], p. 17; Pius XII, Messaggio di Pentecoste, 1941: AAS, 31 [1941], p. 157). Without the right of inheritance succession, private property could not fully attain its purpose in favor of the family community: family stability even in successive generations, and the possibility for parents to fully discharge their function with regard to their children.
II. HEREDITARY SUCCESSION IN CANON LAW AND IN ITALIAN LAW
Since natural law is unformed on this subject, not establishing the modes and limits of inheritance succession, it must be completed by positive law. Therefore, in this matter, civil laws also have moral value, when they do not conflict with natural law, with divine law and with canon law.
Canon law has not many provisions on the matter. There exist only norms regarding succession for sacred furnishings (v.) owned by cardinals, bishops, clerics as regards certain categories of res sacrae (v. cosa, III. Canon law). Canon law still considers valid dispositions for pious causes, even if deprived of legal solemnities (CIC, can. 1513). For everything else one must refer to civil law, save for any conflicts of the latter with natural law. Italian law, which like so many other modern legal systems draws predominantly on Roman law, corresponds in general to the norms of equity.
In ancient and classical Roman law, through succession one entered, as of right, into the very position of the predecessor. This occurred above all in inheritance and was called successio mortis causa and in a few other typical cases (adrogatio, conventio in manum, etc.). In Justinianic law, succession means the designation as a whole of the corresponding relationship of acquisition and loss in transfers. The one who acquired was called successor, the one who transmitted was called author. The concept was later broadened with the distinction between universal succession (successio in universum), the only succession known to the Romans, and particular succession (successio in dominium). The call to the inheritance, or delation, among the Romans could be of two kinds: testamentary or intestate. To these two kinds of delation a third was later added, through the activity of the praetor: legitimate succession against the will, recognized in favor of certain close relatives. The latter developed as a reaction to the absolute right of the paterfamilias to make a will. Roman law encountered in the countries of the Empire Germanic law and other elements of different origin and underwent their contaminations. Of great importance were the changes that occurred in the fundamental principle for the designation of the subjects of inheritance succession. From the 11th century onward the law of succession was dominated by the medieval principle of favoring agnation (already in use in ancient Roman civil law): property was to be preserved for the males, who continued the family. The agnatic principle collapsed with the French Revolution and the Napoleonic Code. Today the equality of the sexes has been implemented for the most part.
The Italian Civil Code, having abolished the agnatic principle, distinguishes with regard to legitimate succession, to which this treatment is confined, two categories of persons, ascendants and descendants, who may concur either together, or separately when the other concurring group is lacking.
A) In the case that there is only one category of legitimate heirs, succession takes place on the basis of a set of cases, which can be summarized as follows for the most ordinary cases: a) legitimate children succeed the parents in equal shares; to legitimate children are equated legitimated and adopted children (art. 566 ff.). b) If someone dies without offspring, without brothers or sisters, the parents succeed in equal shares, or the surviving parent (art. 568). c) If someone dies without offspring, nor parents nor brothers, nor sisters, the paternal and maternal ascendants succeed; if however the ascendants are of different degree, those of the closer degree exclude the others without distinction of line (art. 569). d) If someone dies without offspring, nor parents, nor other ascendants, the brothers and sisters succeed in equal shares: unilateral brothers, however, are entitled only to half the share compared with full brothers (art. 570). e) If someone dies, leaving no relatives capable of succeeding within the 4th degree, the spouse succeeds to the whole (art. 583). f) To one who dies without offspring, nor parents, nor other ascendants, nor brothers, nor sisters, the nearest relative succeeds without distinction of line up to the 6th degree (art. 572; for natural children, v. art. 576). g) When a descendant dies, his children or descendants take his place, and, for the portion pro stipite; lacking ascendants, the right passes to collaterals up to the 6th degree of kinship.
B) In the case in which legitimate heirs of different categories concur: a) legitimate children concur with natural children recognized or declared; the latter obtain half a share per capita compared with the legitimate ones (art. 574). b) Legitimate children concur with the spouse; if there is only one child, the spouse has the usufruct over half the estate; if the children are more than one, the spouse has the usufruct over a third; if they are minors, the spouse has the legal usufruct, but the entire ownership remains with the children. Equal rights belong to the spouse if natural children concur with the legitimate children, evidently in proportion to their share (art. 581). c) Parents concur with full brothers; each will have an equal part, in such a way, however, that the parents are never entitled to less than a third. To unilateral brothers goes half a share (art. 571). d) Parents and spouse concur; half goes to the parents and half to the spouse (art. 582). e) Parents concur with the spouse and with the brothers; half goes to the spouse and half to the others (art. 582). f) The parents of a natural child concur with the spouse; to the latter go two thirds (art. 579). g) When the spouse concurs with recognized natural children and with other ascendants, the divisions are always more complex (art. 575, 582, 583). Legitimate succession does not take place except when testamentary succession is lacking, in whole or in part (art. 457). In modern law there no longer exists, as in ancient Roman law, an incompatibility due to the coexistence of the two forms of vocation. The will (v.) may also contain only a partial disposition of the deceased's property, and then the remainder of the legal relationships of the de cuius is attributed to the successors called by law. This occurs in civil law also when the entire will or the individual testamentary dispositions have no validity, whereas according to natural law the will of the testator should prevail. It is disputed among civil lawyers what the foundation of legitimate succession is, and while some place it in the presumed will of the deceased, others instead find it more appropriate to trace it back to a certain domestic communion.
In legitimate succession, as indeed also in testamentary succession, one can distinguish, at least historically, three aspects: the opening of the succession (apertura), the delation of the inheritance and the acquisition of it.
The opening of the inheritance occurs at the moment of a person's death (art. 456): before that, the vesting of the inheritance is merely virtual (viventis non datur hereditas). The delation of the inheritance is the effective calling to the inheritance and is distinguished from its acquisition. The delation of the inheritance generates a right that may be transmissible to the heirs (art. 479). The acquisition of the inheritance, which occurs either ipso iure or through a manifestation of will (aditio), whether express or equivalent (pro herede gestio), takes place when someone acquires the inheritance in fact. When the acquisition occurs ipso iure or by operation of law, no manifestation of will on the part of the heir is required, but the latter may refuse the acquisition by an express manifestation of contrary will. A conditional or time-limited acceptance would be void, and so too would an acceptance pro parte (art. 475). Acceptance is irrevocable, for the same reason that a time-limited acceptance is inadmissible: semel heres semper heres. It may be challenged only when it is the effect of violence or fraud (art. 482), and within five years from the day on which the violence ceased or the fraud was discovered. It cannot, however, be challenged if it is vitiated by error, save for particular provisions (art. 483). All persons as such have the capacity to inherit, but not all have the capacity to accept the inheritance; those lacking capacity must be represented and assisted. The intervention of the guardianship judge is provided for in certain cases of devolution of an inheritance (arts. 321, 374, 394, 424). The right to accept the inheritance, transmissible to the heirs (art. 479), is subject to a ten-year limitation period; the term runs from the day of the opening of the succession (art. 480).
Acceptance may be express or tacit (art. 474): it is express not only when the called person declares in writing that he accepts, but also when in a writing he assumes the status of heir (art. 475); it is tacit (pro herede gestio) when the called person performs an act that necessarily presupposes his will to accept, and that he would not have the right to perform except in the capacity of heir (arts. 476, 478). The law furthermore presumes acceptance in certain circumstances (arts. 485, 493-94). One therefore speaks of legal, compulsory or presumed acceptance.
When the inheritance has as its object rights over immovable property, the acquisition, in order to be effective also as against third parties, must be recorded by transcription (art. 2648). From transcription, however, other consequences also derive, and it serves, for example, to ground a ten-year usucapion (art. 1159) or to validate the acquisition of a third party who has in good faith entered into a contract with the apparent heir (art. 534).
Alongside pure and simple acceptance, acceptance with the benefit of inventory is always admissible (art. 470); indeed it is sometimes imposed by law, as for persons lacking capacity and juridical persons (arts. 471-73). The effect of the benefit of inventory consists in keeping the estate of the deceased distinct from that of the heir, whereby the latter is not bound to pay the hereditary debts and legacies beyond the value of the assets that have come to him, and is not liable for the administration of the hereditary assets except for gross negligence (art. 491). The law determines the manner in which acceptance with the benefit of inventory must take place, how the inventory must be drawn up, etc. (arts. 484-94). If those called to the inheritance are more than one, all may take advantage of the acceptance with benefit made by one of them (art. 510).
While the law establishes, for the benefit of the heir, acceptance with the benefit of inventory, it grants to creditors and legatees, for the protection of their rights, the benefit of requesting the separation of the estate of the deceased from that of the heir (arts. 512-18). As to the effects of this separation, opinions are not in agreement. For some, the effect would be to consider the two estates separately, so that while the estate of the deceased serves to satisfy the charges of the inheritance, the estate of the heir remains reserved for his personal creditors. But many reject this theory and assert that this separation is made only for the convenience of the creditors of the deceased, and that therefore neither can the creditors of the heir derive any benefit from it, nor is the juridical condition of the heir affected. Regarding acceptance with the benefit of inventory, some ask whether one who has not made use of it is also bound in conscience to satisfy claims ultra vires hereditatis. The answer is commonly negative, because the law is based on a presumption that the hereditary assets are sufficient, but that the heir has concealed them; and that he had the intention of binding himself ultra vires or that he at least was willing to expose himself to this danger. Now a law founded on a presumption of fact falls when the fact does not exist. Nevertheless this does not deprive creditors and legatees of the right to insist, should a fear of fraud subsist. On the other hand, even after a judgment of the court in their favour, the heir in conscience is not bound to observe it if there has been no fraud.
Renunciation in Italian law cannot be made except after the opening of the succession (otherwise it would run counter to the prohibition of agreements as to future successions). What is meant here is renunciation in the technical sense, by which one loses as against everyone the right to the status of heir. It must result expressly; tacit renunciation is therefore not admitted. Moreover, the renunciation has no effect unless the forms required for the solemn transaction are observed, and the declaration must be entered in the register of successions.
Renunciation may be made until the right to accept is time-barred, but not after acceptance. Renunciation, like acceptance, is a pure transaction, and is void if made subject to a condition, to a term, or only in part (art. 520). The act always has retroactive effect and the renouncer is as if he had never been called to the inheritance, but he is not thereby prevented from accepting legacies (art. 521). Unlike acceptance, renunciation is a revocable transaction until, following the refusal of the person called in a given degree, a person called in a further degree has in turn accepted (art. 525); and it may be challenged if it is the effect of violence or fraud (art. 526). The assets renounced go to the co-heirs according to particular rules, namely in intestate successions the share of the one who renounces accrues (right of accrual) to those who would have taken together with the renouncer, save the right of representation (art. 522) and save the particular rules in the case of parents or ascendants taking together with brothers and sisters (art. 571). In the absence of other successors the inheritance devolves upon the State (art. 586). Since renunciation may cause harm to the creditors of the renouncer, the law grants to them the right (subject to a five-year limitation period from the renunciation) to request authorization to accept the inheritance in the name and in place of the renouncer, for the sole purpose of satisfying themselves out of the hereditary assets up to the amount of their claims (art. 524).
The estate is called hereditas iacens, quae heredem nondum habet sed habere sperat. It is distinguished from the vacant estate in that here, unlike the former, the heir is neither had nor hoped for. In Roman law, for the entire period that passed between the delation and the adition, the estate was called iacens. Today, with the retroactive effect of acceptance and with the immediate passing of possession, this can no longer be maintained. In some cases one can still speak of a lying estate, namely when the legitimate heirs have not accepted the inheritance and are not in possession of the hereditary assets (art. 528). This hypothesis also includes the case in which the called person is unknown, as happens, for example, when the family members of the deceased are not known, or when even only their residence is unknown; and the cases in which it is known who the called person would be, but it cannot be known whether he will come to the inheritance. The lying estate is ordinarily represented and administered by a curator, appointed by the praetor (arts. 528 § 42 and v. CURATELA; CURATORE). Through the curator the lying estate, considered as an autonomous patrimony, asserts its rights and satisfies its obligations.
The heir continues the person of the deceased and therefore succeeds to his rights and his obligations. Nevertheless, particular effects arise in the inheritance from the fact that several persons may be called to the inheritance. Moreover, although the heir continues the person of the deceased, not all rights and all obligations can be transmitted to him.
The following are non-transferable: a) all public rights and the rights that are called familial; b) the rights of usufruct (art. 678), use and habitation (art. 1024) (by reason of their particular nature); c) the right that arises in the principal under the contract of mandate (arts. 1722, 1728); d) the right to maintenance (art. 448); e) the conditional right arising from an act mortis causa; f) the obligations that arise from mandate (arts. 1722, 1728); g) the obligations that arise from a contract of partnership (art. 2284).
However, certain familial and personal rights are governed by particular law. The family name, in fact, is transmitted by right of blood to the descendants of the de cuius (differently from the title or trade name, which as an economic reality is transmitted by inheritance).
When several persons are called pro quota to the same inheritance, the communio incidens arises among them, which is regulated by the general rules on co-ownership (arts. 1100-1116). To avoid the intrusion of new subjects into the co-ownership, the Code of 1942 has restored in favor of the co-heirs a right of pre-emption over the acquisition of the share or of part of the inheritance that one of them wishes to alienate to outsiders (art. 732). But the hereditary debts and credits are withdrawn, along with the other burdens, from the hereditary co-ownership; as soon as the succession occurs they are divided ipso iure among the heirs, according to their own hereditary share (art. 752).
The hereditary co-ownership ends with the division of the inheritance. The rules on hereditary division (art. 713 ff.) supplement those on the dissolution of co-ownership in general (art. 1111 ff.). Since co-ownership is often a source of discord and at the same time prevents a better use of the assets, the law recognizes in every heir the faculty to request the dissolution of the co-ownership, unless there is an agreement to the contrary, which however cannot be made for more than ten years (art. 1111). The division may be amicable or judicial. The former, which is effected by the agreement of all the called persons, is not subject to particular formalities. The latter, on the other hand, consists of three acts: determination of the mass to be divided, determination of the shares, and assignment and homologation of the act by the court. The determination of the mass requires first of all the appraisal of the assets with the settling of accounts among the co-heirs and the drawing up of the active and passive state of the inheritance (art. 723). The determination of the shares is done by attending to the number of the heirs and the nature of the assets. Particular rules establish the criteria for the formation of the portions or regulate the fate of indivisible assets or those that cannot fall within the individual portions (arts. 720, 722, 726-28).
Collation, which originates from the collation of assets and of dowry in Roman law, imposes on the heir who wishes to enter upon the inheritance (and therefore not if he renounces it) the burden of conferring upon the co-heirs all that he has received during the lifetime of the deceased by way of liberality (art. 737). Collation is based on the presumed will of the de cuius, who is held to have wished to preserve equality among the heirs; and therefore it is not to be confused with the reduction of the donation, which is made when the legitime portion is infringed thereby. Collation is distinguished: a) from the fictitious reunion, which is made only with the intent of defining the portion of which the testator may freely dispose; b) from the reduction, which is made with regard to testamentary dispositions and donations, when the legitime portion has been infringed by these; c) from imputation taken in the strict sense, which indicates the obligation of the forced heir who requests the reduction of the testamentary dispositions and donations of computing in one's own legitime share what one had received either by donation or by legacy from the deceased, unless the testator has expressly exempted one from such an obligation; d) by the collation of debts, by which each heir is bound to contribute his own debts; with this collation, in fact, the mass of the relictum is not increased, because the debts already corresponded to a credit in the assets of the mass. As for the right of collation, moreover (art. 737 ff.), with regard to obligations of conscience one must attend, more than to the letter, to the purpose of the law, which is based on the presumed will of the deceased. So that when one is certain of the absolute will of the donor, the donated goods may be retained even in cases in which the positive law does not exempt from the obligation to contribute.