Inheritance preemption: The Supreme Court of Cassation closes a decades-long debate

In the inheritance landscape, few provisions have created as much uncertainty as Article 732 of the Civil Code, which deals with hereditary pre-emption. This seemingly simple provision, created to preserve the family nature of joint inheritance, has, in practice, generated interpretative doubts, conflicting case law, and numerous problems in share transactions.

With Order No. 33716/2025, the Court of Cassation addresses one of the most controversial issues. Hereditary pre-emption is a personal right of the original co-heir and is not passed on to anyone who succeeds to the share. This clarification, for those working in the sector, has a much more profound impact than it seems.

• Why hereditary pre-emption exists
• The right of pre-emption is not inherited
• When the pre-emption right is used up
• Hereditary pre-emption and agrarian pre-emption
• What changes for those who sell or buy inheritance shares?

Why hereditary pre-emption exists

Upon the death of a person with multiple heirs, a joint inheritance is formed. Until the division, each co-heir can sell their share, but not freely. First, they must offer it to the other co-heirs under the same conditions. This is the traditional denuntiatio.

If the sale takes place without this step, the other co-heirs can exercise the right of inheritance, redeeming the share from the third-party purchaser.

The rationale is clear: to prevent the entry of outsiders into the communion , preserving the family unity of the hereditary patrimony.

The right of pre-emption is not inherited

The Court of Cassation states it bluntly: "Hereditary pre-emption pursuant to art. 732 of the Civil Code is a personal right, linked to the status of co-heir".

Only the original co-heirs (those who accepted the deceased's inheritance) can exercise pre-emption. Anyone who succeeds to the share does not inherit the right of pre-emption. The right does not follow the share , but remains attached to the person of the co-heir.

It's a principle that greatly simplifies sales management. You no longer have to chase an endless chain of successors to figure out who has the right of first refusal.

When the pre-emption right is used up

The Court adds a decisive passage: "Once the share leaves the circle of the first successors of the deceased, the rights of pre-emption and retraction are definitively consumed".

If a co-heir dies and his share passes to his heirs, the hereditary pre-emption right no longer exists. If the share is sold to a third party without denuntiatio, only the original co-heirs can sue for retraction. If none of them exercises the right, the pre-emption right is extinguished forever.

This prevents pre-emption from becoming an eternal constraint and ensures certainty in transactions.

Hereditary pre-emption and agrarian pre-emption

The ordinance arose from a case involving an agricultural estate. After several successions, the share had been sold to a relative. An original co-heir invoked hereditary pre-emption. Another individual, a farmer, invoked agricultural pre-emption.

The heirs who have inherited the share cannot exercise hereditary pre-emption, because the right has expired. However, agrarian pre-emption remains fully effective because it has a different nature and prerequisites and is not dependent on the survival of hereditary pre-emption.

The message is clear: the two preemptions do not compete on the same level and the hereditary one cannot "block" the agrarian one once it has become extinct.

What changes for those who sell or buy inheritance shares?

For co-heirs, if they wish to sell their share, they must file the declaration only with the original co-heirs. If they fail to do so, they risk inheritance retraction.

For those purchasing, it is necessary to verify who the original co-heirs are. If the share has already passed to second-degree heirs, the right of inheritance can no longer be exercised, and therefore the purchase can be made directly. If, however, the share has not passed to second-degree heirs, it is mandatory to communicate the intention to purchase in advance (usually 30 days in advance by registered mail with return receipt). It is then up to the original heirs to accept, even tacitly, or reject the offer, as they may be interested in purchasing under the same conditions.

Ordinance no. 33716/2025 finally brings order to an often confusing matter. However, it's always a good idea to rely on experts in the field. With Agenzia delle Successioni, you can request a consultation and then choose the most appropriate service. Simply fill out the form on the website's homepage.