SUCCESSIONE EREDITARIA

SUCCESSION IN LAW. — Succession,
taken in its most general juridical sense, indicates
any transfer of rights from one subject to another. It
may be extended to all the transferable rights of a subject,
in which case it is a succession *a titulo universali*, or it
may be limited to some of these rights, resulting in a
succession *a titulo particulari*.

If it is intended to take effect while the holder of the
rights is still alive, it is called *inter vivos* succession;
if, instead, it opens after the death of the holder, it is
*mortis causa* succession. The latter may be either *a
titulo particulari*, as in a legacy (v.), or *a titulo universali*,
as in an inheritance. Succession in law, in turn, in relation
to the juridical cause from which it depends, is distinguished
into: testamentary succession (v. TESTAMENT), and
legitimate or *ab intestato* succession.

Legitimate succession occurs by virtue of the law, which
enacts the presumed will of the deceased; testamentary
succession, instead, is determined directly by the will of the
deceased, duly expressed. The law establishes the manner
in which such will must be manifested, that is, it assigns
the form of this important juridical act and may require it
*ad validitatem*.

I. SUCCESSION IN LAW IN NATURAL LAW

Succession in law is undoubtedly today the most important mode of acquisition. Until Pufendorf (1632–94), all jurists recognized a natural foundation for the right of succession in law, whether it concerned testamentary succession or succession *ab intestato*. The principle guiding them was the famous principle of Roman law: “Nothing is so consonant with natural equity as to recognize the will of the owner who wishes to transfer his goods” (*De iure nat. et gent.*, I, 4, c. 3). Pufendorf began by denying a natural foundation to dispositions of last will, especially to the testament, while continuing to recognize it for succession *ab intestato*. There were even followers of Pufendorf’s thesis among Catholics in the 17th century (Schwarz, Schmalzgruber, Zollinger). Today the thesis is defended by all legal positivists and is extended to the entire law of inheritance. The State is the source of all law and therefore has no limits in regulating this matter concerning succession to hereditary goods.

On the other hand, there has been continuity of doctrine
among theologians. They, in fact, in the great majority,
both in antiquity and today, have sided in favor of the
origin of the right of succession in law from natural law.
Most of them do not consider the argument directly, though
it is clearly presupposed as an undisputed foundation in
the treatment of the thorny question of the validity or
invalidity of an informal testament. Some, such as St.
Antoninus, Molina, and Lessius, hold that an informal
testament creates a true natural obligation; others, such as
Soto, Billuart, and Sanchez, consider it valid by virtue of
the natural obligation until the judge’s sentence; still others,
such as Vasquez, Bonacina, and countless followers, consider
such testaments invalid, not because the sole source of
hereditary 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 due to a defect of form.
The nature of the right of succession in law is therefore,
for all these authors, beyond dispute: it is a natural right.
The points of view diverge only on the extent of civil power
in regulating this institution.

Modern theologians concur with this doctrine, and are
led to reaffirm this principle more forcefully in order to
combat today both the enemies of private property and
those of family stability, as well as those who affirm an
unlimited power of the State in this matter. A reference
to the natural origin of the right of succession may perhaps
be seen in two Pauline texts: “if... sons and heirs” (Rom.
8:17; cf. also Gal. 4:7); but it is in ecclesiastical magisterium,
and especially in the social encyclicals, that the
question is addressed with some breadth and with arguments
that reason is compelled to admit as an exigency of
another natural law, that of private property (v.). “By an
inviolable law of nature,” says Leo XIII, “it falls to the
father to maintain his offspring; and by the impulse of
the same nature, which makes him see in his children an
image of himself and almost an expansion and continuation
of his person, he is moved to provide for them in such a
way that, in the difficult course of life, they may decently
meet their needs—a thing not possible to achieve unless
through the acquisition of fruitful goods, which he then
transmits to them as an inheritance” (Denz.-U., 1938a; cf.
also Pius XI, encyclical *Quadragesimo anno*, no. 16: AAS,
23 [1931], p. 17; Pius XII, Pentecost Message, 1941: AAS,
31 [1941], p. 157). Without the right of succession in law,
private property could not fully achieve its purpose for the
benefit of the family community: family stability even in
subsequent generations, and the ability of parents to fully
fulfill their duty toward their children.

II. SUCCESSION IN LAW IN CANON LAW AND ITALIAN LAW

Since natural law is not specific on this matter, not establishing the modes and limits of succession in law, it must be supplemented by positive law. Therefore, in this matter, civil laws also have moral value when they do not contradict natural law, divine law, or canon law.

Canon law has few provisions on this subject. There are
only norms regarding succession to sacred furnishings (v.)
belonging to cardinals, bishops, and clerics with regard to
certain categories of *res sacrae* (v. *cosa*, III. Canon Law).
Canon law also considers dispositions for pious causes valid
even if lacking legal solemnities (*CIC*, can. 1513). For all
else, one must refer to civil law, except where it conflicts
with natural law. Italian law, like many other modern
systems, is largely based on Roman law and generally
conforms to the norms of equity.

In ancient and classical Roman law, succession meant
taking the place of the deceased in the legal position of the
predecessor. It occurred especially in inheritance and was
called *successio mortis causa*, and in a few other typical
cases (adrogatio, *conventio in manum*, etc.). In Justinian’s
law, succession came to mean the designation, in general,
of the relationship of acquisition and loss corresponding to
transfers. The one who acquired was called the successor,
and the one who transferred, the author. The concept was
then broadened with the distinction between universal
succession (*successio in universum*)—the only type known
to the Romans—and particular succession (*successio in
dominium*). The calling to an inheritance or *delatio* in
Roman law could be of two kinds: testamentary or
intestate. To these two kinds of *delatio*, a third was later
added by praetorian activity: legitimate succession against
the testament, 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 provinces of the Empire the Germanic law and other
elements of diverse origin and underwent their influence.
Of great significance were the changes that occurred in the
fundamental principle for the designation of the subjects
of succession in law. 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): goods were to be preserved for 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 largely implemented.

The Italian Civil Code, having abolished the agnatic principle, distinguishes, in relation to legal succession (the scope of which is limited to this discussion), two categories of persons who may succeed either together or separately if the other group is lacking: ascendants and descendants.

A) In the case where there is only one category of legal heirs, succession occurs according to a casuistry that can be summarised for the most common cases as follows:
a) If parents survive, they are succeeded by legitimate children in equal shares; legitimate children are equated with legitimised and adopted children (arts. 566 et seq.).
b) If a person dies without issue, without brothers or sisters, the parents succeed in equal shares or the surviving parent takes the whole (art. 568).
c) If a person dies without issue, without parents, brothers or sisters, the paternal and maternal ascendants succeed; however, if the ascendants are of different degrees, those of the nearer degree exclude the others without distinction of line (art. 569).
d) If a person dies without issue, without parents or other ascendants, brothers and sisters succeed in equal shares; however, half-brothers and half-sisters have a right to only half the share compared to full brothers and sisters (art. 570).
e) If a person dies without any relatives entitled to succeed within the fourth degree, the surviving spouse succeeds to the entire estate (art. 583).
f) If a person dies without issue, without parents or other ascendants, without brothers or sisters, the nearest relative succeeds without distinction of line up to the sixth degree (art. 572; for natural children, V. art. 576).
g) Upon the death of a descendant, his children or descendants take his place and, for their portion *pro stirpe*, succeed him; if there are no ascendants, the right passes to the collateral relatives up to the sixth degree of relationship.

B) In the case where legal heirs of different categories concur:
a) Where legitimate children concur with recognised or declared natural children, the latter receive half the share per capita compared to the legitimate children (art. 574).
b) Where legitimate children concur with the surviving spouse, if there is only one child, the spouse has usufruct over half the estate; if there are several children, the spouse has usufruct over one-third; if the children are minors, the spouse has the legal usufruct, but full ownership remains with the children. The same rights accrue to the spouse if natural children concur with legitimate children, evidently in proportion to their share (art. 581).
c) Where parents concur with full brothers and sisters, each shall receive an equal share, though parents shall never receive less than one-third. Half-brothers and half-sisters receive half the share (art. 571).
d) Where parents concur with the surviving spouse, half goes to the parents and half to the spouse (art. 582).
e) Where parents concur with the surviving spouse and with brothers and sisters, half goes to the spouse and half to the others (art. 582).
f) Where the parents of a natural child concur with the surviving spouse, two-thirds go to the latter (art. 579).
g) Where the surviving spouse concur with recognised natural children and other ascendants, the divisions are always more complex (arts. 575, 582, 583).

Legal succession only comes into play when testamentary succession is wholly or partially lacking (art. 457). In modern law, unlike ancient Roman law, there is no longer any incompatibility in the coexistence of the two forms of vocation. A will (v.) may contain only a partial disposition of the deceased’s assets, and the remaining legal relationships of the deceased are then attributed to the successors called by law. This occurs in civil law even when the entire will or individual testamentary dispositions are invalid, whereas according to natural law the testator’s will should prevail. Among civilists, there is debate over the foundation of legal succession: while some locate it in the presumed will of the deceased, others find it more appropriate to ground it in a certain domestic communion.

In legal succession, as indeed in testamentary succession, three aspects can be distinguished, at least historically: the opening of the succession (apertura), the delation of the inheritance, and its acquisition.

The opening of the succession occurs at the moment of the person’s death (art. 436): prior to this, the vocation is merely virtual (*viventis non datur hereditas*). The delation of the inheritance is the actual vocation to the inheritance and is distinct from its acquisition. The delation of the inheritance generates a right that may be transmissible to heirs (art. 479). The acquisition of the inheritance, which occurs either *ipso iure* or through the manifestation of will (aditio), expressed either explicitly or equivalently (*pro herede gestio*), takes place when someone actually acquires the inheritance. When acquisition occurs *ipso iure* or by operation of law, no manifestation of will is required from the heir, though the heir may renounce the acquisition through an express contrary manifestation of will. A conditional or time-limited acceptance would be void, as 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 only be challenged if it results from 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, except under particular provisions (art. 483).

All persons, as such, have the capacity to inherit, but not all have the capacity to accept an inheritance; incapable persons must be represented and assisted. The intervention of the guardianship judge is provided for in certain cases of inheritance disputes (arts. 321, 374, 394, 424). The right to accept an inheritance, which is transmissible to heirs (art. 479), prescribes in ten years; 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 party declares in writing to accept, but also when in a written instrument they assume the capacity of heir (art. 475); it is tacit (*pro herede gestio*) when the called party performs an act that necessarily presupposes their will to accept and that they would not have the right to perform except in the capacity of heir (arts. 476, 478). The law also presumes acceptance in certain circumstances (arts. 485, 493–94). This is referred to as legal, compelled, or presumed acceptance.

When the inheritance comprises rights over immovable property, acquisition, to be effective against third parties, must be transcribed (art. 2648). Transcription, however, also produces other consequences; for example, it serves to found a ten-year usucaption (art. 1159) or to validate the acquisition of a third party who has acted in good faith in a contract with the apparent heir (art. 534).

Alongside pure and simple acceptance, acceptance with benefit of inventory is always admissible (art. 470); indeed, it is sometimes imposed by law, as for incapable persons and legal entities (arts. 471–73). The effect of the benefit of inventory is to keep the deceased’s estate distinct from that of the heir, so that the heir is not liable for the deceased’s debts and legacies beyond the value of the assets received, and is not answerable for the administration of the estate except in cases of gross negligence (art. 491). The law determines the procedures by which acceptance with benefit of inventory must occur, including the drafting of the inventory (arts. 484–94). If there are multiple called parties to the inheritance, all may benefit from the acceptance with benefit of inventory made by one of them (art. 510).

The law, while establishing acceptance with benefit of inventory for the heir’s advantage, grants to creditors and legatees, for the protection of their rights, the benefit of requesting the separation of the deceased’s estate from that of the heir (arts. 512–18). Opinions are not unanimous regarding the effects of this separation. Some hold that the effect is to consider the two estates separately, so that while the deceased’s estate serves to satisfy the burdens of the inheritance, the heir’s estate remains reserved for his personal creditors. Many, however, reject this theory and assert that this separation is made only for the convenience of the deceased’s creditors, and that therefore the heir’s creditors cannot derive any benefit from it, nor is the heir’s legal status altered. Regarding acceptance with benefit of inventory, some ask whether one who has not availed himself of it is also bound in conscience to satisfy debts beyond the value of the inheritance. The common answer is negative, since the law is based on a presumption that the hereditary assets are sufficient, but that the heir has concealed them and intended to bind himself beyond the value of the inheritance or at least exposed himself to this risk. 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, where there is a fear of fraud. On the other hand, even after a judicial ruling favorable to them, the heir is not bound in conscience to observe it if no fraud has occurred.

In Italian law, renunciation cannot take place except after the opening of the succession (otherwise it would contravene the prohibition of succession agreements). Here we speak of renunciation in the technical sense, by which one loses, vis-à-vis all, the right to the status of heir. It must be expressly declared; tacit renunciation is therefore not admitted. Moreover, renunciation has no effect unless the forms required for a solemn act are observed, and the declaration must be inscribed in the register of successions.

Renunciation may be made until the right to accept is prescribed, but not after acceptance. Like acceptance, renunciation is a pure act and is void if made under a condition, term, or only in part (art. 520). The act always has retroactive effect, and the renouncing party is as if he had never been called to the inheritance, though he is not thereby prevented from accepting legacies (art. 521). Unlike acceptance, renunciation is a revocable act until, following the refusal of one called in a certain degree, a person called in a subsequent degree has in turn accepted (art. 525), and it may be challenged if it results from violence or fraud (art. 526). The assets to which one renounces pass to the co-heirs according to particular rules, namely, in intestate successions the share of the person who renounces accrues to those who would have concurred with the renouncing party (right of accrual), subject to the right of representation (art. 522) and to the special rules in the case of concurrence of parents or ascendants with brothers and sisters (art. 571). In the absence of other successors, the inheritance devolves to the State (art. 586). Since renunciation may prejudice the renouncing party’s creditors, the law grants them the right (prescribable in five years from the renunciation) to seek authorization to accept the inheritance in the name and stead of the renouncing party, solely for the purpose of satisfying themselves from the hereditary assets up to the amount of their claims (art. 524).

An estate is said to be *iacens* when it has no heir but expects one. It is distinguished from a vacant estate in that in the latter case the heir is neither present nor expected. In Roman law, during the period between delation and acceptance, the inheritance was called *iacens*. Today, with the retroactive effect of acceptance and the immediate transfer of possession, this can no longer be sustained. One may still speak of a *jacens* estate in cases where the intestate heirs have not accepted the inheritance and are not in possession of the hereditary assets (art. 528). This category also includes cases where the person called is unknown, as when the deceased’s relatives are unknown or even only their residence is unknown, and cases where it is known who would be called but it cannot be known whether he will come to the inheritance. The *jacens* estate is ordinarily represented and administered by a curator appointed by the pretor (art. 528 § 42 and cf. CURATELA; CURATORE). Through the curator, the *jacens* estate, regarded as an autonomous patrimony, enforces its rights and satisfies its obligations.

The heir continues the person of the deceased and thus succeeds to his rights and obligations. Particular effects nonetheless arise in the so-called succession from the fact that several persons may be called to the inheritance. Although the heir continues the person of the deceased, not all rights and obligations can be transmitted to him.

The following are intransmissible:
a) all public rights and those called family rights;
b) rights of usufruct (art. 978), use, and habitation (art. 1024) (owing to their special nature);
c) the right arising in the mandator under a contract of mandate (arts. 1722, 1728);
d) the right to support (art. 448);
e) a conditional right arising from an act mortis causa;
f) obligations arising from mandate (arts. 1722, 1728);
g) obligations arising from a contract of partnership (art. 2284).

Certain family and personal rights, however, are governed by special rules. The family name, for instance, is transmitted by right of blood to the descendants of the de cuius (unlike a trade name or style, which as an economic reality is transmitted by inheritance).

When several persons are called to the same inheritance by quota, a *communio incidens* arises among them, governed by the general rules on co-ownership (arts. 1100–1116). To prevent new subjects from entering the co-ownership, the 1942 Civil Code has restored to co-heirs a right of pre-emption over the purchase of a share or part of the inheritance that one of them wishes to alienate to outsiders (art. 732). Debts and credits of the inheritance, along with other burdens, are withdrawn from the hereditary co-ownership; as soon as succession occurs, they are divided *ipso iure* among the heirs according to their hereditary share (art. 752).

Hereditary co-ownership ends with the division of the inheritance. The rules on hereditary division (arts. 713 ff.) supplement those on the dissolution of co-ownership in general (arts. 1111 ff.). Since co-ownership is often a source of discord and at the same time prevents better use of the assets, the law grants each heir the faculty to seek dissolution of the co-ownership, unless there is a contrary agreement that, however, cannot extend beyond ten years (art. 1111). Division may be amicable or judicial. The former, effected by agreement among all those called, is not subject to special formalities. The latter 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 first requires an appraisal of the assets, rendering of accounts among co-heirs, and formation of the active and passive state of the inheritance (art. 723). The determination of the shares is made by reference to the number of heirs and the nature of the assets. Special rules establish the criteria for forming the portions or regulate the fate of indivisible assets or those that cannot be included in individual portions (arts. 720, 722, 726–28).

Collation, which originates from the collation of property and dowry in Roman law, imposes on the heir who wishes to accept the inheritance (and not on one who renounces it) the burden of conferring upon co-heirs everything received in life from the deceased by way of gift (art. 737). Collation is based on the presumed will of the de cuius, who is deemed to have wished to preserve equality among heirs; it should therefore not be confused with the reduction of gifts, which occurs when the legitimate portion is impaired thereby. Collation is distinguished from:

a) the fictitious reunion, which is effected solely for the purpose of determining the portion over which the testator may freely dispose;

b) reduction, which is applied to testamentary dispositions and gifts when these impair the legitimate portion;

c) imputation in the strict sense, which denotes the obligation of the legitimated heir who seeks reduction of testamentary dispositions and gifts to include in his legitimate share what he has received by gift or legacy from the deceased, unless the testator has expressly relieved him of this obligation;

d) collation of debts, by which each heir is bound to confer his own debts; with this collation, indeed, the mass of the estate is not increased, since the debts correspond to a credit already existing in the assets of the estate.

As regards the right of collation (art. 737 et seq.), in matters of conscience one must look, more than to the letter of the law, to its purpose, which is based on the presumed will of the deceased. Thus, where the absolute will of the donor is certain, donated property may be retained even in cases where positive law does not exempt from the obligation to confer II.
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**ILLUSTRATION**

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