Hereditary division by lot: function and application limits

The division of the inheritance represents the final stage of the joint inheritance, through which the co-heirs transform their respective abstract shares into concrete portions of assets . Among the allocation criteria established by law, a central role is played by the drawing of lots , an institution that the legislator intended to enhance as an instrument of impartiality and neutrality in the attribution phase.

Random allocation and direct attribution: the general rule

The Civil Code clearly distinguishes between equal portions, which must be assigned by drawing lots, and unequal portions, which must instead be attributed directly to the co-heirs holding the respective shares.

The rule is apparently simple. Equal portions are assigned by drawing lots; unequal portions are assigned by attribution.

However, inheritance practice has shown that the concrete application of this principle requires a systematic reading, especially when the shares undergo changes over time or when the assets allow for alternative solutions.

The reference moment for evaluating the equality of the shares

One of the most debated issues concerns the identification of the time point to which reference should be made to establish whether the shares are equal or unequal.

According to the most ancient doctrine and jurisprudence , the equality of the shares had to be evaluated with reference to the moment of the opening of the succession.

It followed that any subsequent dispositive acts, such as the transfer of the inheritance share between co-heirs, could not have affected the allocation criterion.

To give an example:

• four co-heirs with equal shares;
• one of them purchases the share of another co-heir;
• in any case, four equal portions are formed , to be assigned by drawing lots;
• the purchasing co-heir will receive two portions , corresponding to the original share and the purchased one.

However, more recent doctrine and jurisprudence have overcome this approach, holding that the equality of shares must be assessed at the time of division and not at the opening of the succession.

There are many reasons for this. The law does not expressly define the shares as "hereditary," but refers to participation in the joint ownership . This participation may be modified by valid dispositive acts . The right of pre-emption between co-heirs , aimed at favoring the concentration of shares, presupposes the relevance of the modifications that occurred before the division.

It follows that the drawing criterion is not automatic, but subordinate to the persistence of equality of the shares at the time of division.

Request for joint attribution and consequences on the draw

A particularly significant hypothesis is that in which, despite the presence of originally equal shares, some co-heirs ask to maintain the joint ownership between them, obtaining the joint attribution of a portion equal to the sum of their respective shares.

In that case:

• the original parity is altered;
• a situation of unequal portions is created;
• it becomes impossible to proceed with the assignment by drawing lots;
• the judge must proceed with direct attribution.

Case law has clarified that this alteration fully justifies the abandonment of the criterion of drawing lots, since it affects the methods of implementing the division and the balance between the co-owners.

The rationale behind the draw: impartiality and transparency

The legislative preference for drawing lots in the presence of equal shares responds to a clear rationale: when any quantitative element of differentiation between co-heirs is lacking, the only value to be safeguarded is perfect impartiality.

The drawing of lots ensures neutrality, avoids suspicions of favoritism, strengthens trust in the division process, and discourages opportunistic or opaque behavior.

Drawing lots in the formation of portions with unequal shares

However, it is permitted for the judge to resort to drawing lots in the phase of forming the portions, even in the presence of unequal shares, when there are goods of equal value, of identical nature and quality and interchangeable between the different portions.

For example, in the presence of two perfectly equivalent properties, the judge can draw lots to determine which property to include in each portion, while maintaining the final allocation based on the shares.

Joint application of the criteria

When equal and unequal shares coexist in the same division, it is clear that direct attribution applies to the unequal shares and allocation by drawing lots applies to the equal shares.

The two modalities are not mutually exclusive, but operate together, ensuring a division consistent with the concrete structure of the hereditary communion.

To learn more about this matter, you can contact the Agenzia delle Successioni, which can best guide you in similar situations.