The right of pre-emption in the division of an inheritance

The right of pre-emption in the division of an inheritance is governed by Article 732 of the Italian Civil Code. According to this provision, a co-heir who intends to sell his or her share of the inheritance, or part of it, to a third party is required to notify the other co-heirs of the proposed sale, specifying the price. The other co-heirs may exercise their right of pre-emption within two months of the last notification received. If notification is not received, the co-heirs have the right to redeem the sold share from the purchaser and any subsequent heirs, as long as the joint ownership of the estate persists. In the event that multiple co-heirs exercise the right of redemption, the share is assigned to them in equal shares.

Historical evolution and rationale of the law

The current legislation has reintroduced the institution of the successional retractation, abolished by the Civil Code of 1865 because it was deemed an obstacle to the free circulation of assets. The reintroduction of this provision with the 1942 Code has generated a doctrinal and jurisprudential debate regarding the legislator's motivations for reinstating it and its relevance.

Initially, the rationale behind the provision was identified as the intent to preserve harmony between co-heirs, often linked by family ties, by preventing the entry of outsiders who could introduce speculative interests. However, this thesis has been criticized, as co-heirs are not always linked by emotional ties.

A different interpretation has highlighted the need to avoid the fragmentation of the inheritance. This position has also been criticized, emphasizing that the sale of the inheritance share could favor the concentration of the shares in a single entity, rather than further fragmenting them.

The most recent doctrine and case law seem to favor a third interpretation, according to which the objective of the rule is to ensure the stability of the inheritance community among the original co-heirs, preventing the entry of third parties not belonging to the initial group and facilitating the creation of larger portions for the heirs.

Practical aspects and application consequences

Article 732 of the Civil Code protects interests of a predominantly private nature, unlike other legal pre-emption provisions. This gives rise to some important application consequences:

1. Waiver of the right of pre-emption: the co-heir may validly waive the right of pre-emption, either in relation to a specific proposal received or in advance, provided that he or she is aware of the conditions of the sale.
2. Limitations by the testator: the testator may exclude or limit the application of the heritage pre-emption, within the limits permitted by Article 713 of the Civil Code, which regulates the status of joint inheritance.

Conditions of applicability

For the application of this rule, the following is required: Existence of a joint inheritance. Legal doctrine and jurisprudence agree that the right of inheritance does not apply to ordinary joint inheritances, but only to those resulting from an inheritance. Indeed, Article 732 introduces an exception to the principle of free disposal of property, which cannot extend beyond the cases expressly provided for by the legislature. The right of pre-emption in the division of an inheritance represents a protection tool for co-heirs, allowing them to preserve the unity of the family estate and prevent the entry of individuals outside the joint inheritance. However, its exercise must balance the interest in the free circulation of assets with the need to ensure the stability of relationships between co-heirs. To learn more about this topic, you can contact the professionals at Agenzia delle Successioni.