Revocation of a donation: when it is possible to cancel a donated asset

The revocation of a donation, especially when it involves real estate, is an issue that concerns many people. Although the act of donating an asset—whether it be a house, land, or a sum of money—is generally perceived as final and irrevocable, Italian law provides specific cases in which a donation can be revoked or canceled. But in what situations does the law allow it? And what are the procedures and deadlines to follow?
This complete guide examines the legislation, the cases provided for by the Civil Code, and the practical implications of proceeding with a revocation or cancellation.

What a donation is according to the law

From a legal standpoint, a donation is much more than a simple gesture of generosity. Article 769 of the Italian Civil Code defines it as the contract “by which, out of a spirit of liberality, one party enriches another by disposing of a right in their favor or by assuming an obligation towards them”.

In other words, it is a genuine gratuitous contract that transfers an asset or right from the donor to the donee. To be valid, a donation must meet certain requirements:

• the donor must be of legal age, mentally competent, and free in their decision-making;
• the donation must be formalized through a public deed before a notary;
• the donee must explicitly accept the act.

Exceptions exist only for donations of modest value, which do not necessarily require a notarial deed.

Revocation and cancellation: what is the difference?

Once the notarial deed has been signed, the donation becomes irrevocable. However, the Civil Code provides two legal remedies that may allow the donor to regain ownership of the asset:

• Cancellation of the donation, which applies when the contract is invalid due to errors or unlawful grounds;
• Revocation of the donation, which applies when new circumstances arise, such as the ingratitude of the donee or the subsequent birth of children.

Both differ from contesting the donation, which can be initiated by heirs or creditors who believe their rights have been infringed.

When a donation can be canceled

Cancellation applies when the deed contains original defects that render it invalid. The Civil Code allows it in cases of:

• an error on the part of the donor recorded in the contract;
• an unlawful motive underlying the transfer, which makes the agreement void.

In short, cancellation is based on issues of form or validity of the contract itself.

When a donation can be revoked

Revocation, on the other hand, applies when the contract is valid but new conditions arise that allow the donor to recover the asset. The law provides for two main cases:

Revocation due to the subsequent birth of children

If the donor discovers they have a child (or descendant) after making the donation, they may request revocation within five years of the child’s birth or of learning of their existence.

Revocation due to the donee’s ingratitude

Revocation may also be requested when the donee shows serious ingratitude. The law considers the following acts as ingratitude:

• attempted murder or homicide of the donor or their family members;
• serious crimes against the donor (such as incitement to suicide, slander, or serious bodily harm);
• damage to the donor’s assets;
• unjustified refusal to provide assistance to the donor in a state of need.

In such cases, the time limit for requesting revocation is one year from the discovery of the offensive behavior.

It should be noted that marriage donations (made on the occasion of marriage) and remunerative donations (made as a reward for a service or performance) cannot be revoked.

How to revoke or cancel a donation

The procedure differs depending on the type of action:

• Cancellation: in some cases, this can also take place through a new notarial deed, if both donor and donee agree.
• Revocation: this requires a court ruling, whereby the judge verifies the legal grounds and orders the return of the assets.

What happens after a revocation or cancellation

If the court grants the request for revocation or cancellation, the donee is obliged to return the assets received. In the case of real estate, for example, the property must be returned to the donor.

In certain situations, in addition to the asset itself, the donee must also return any civil or natural fruits derived from it, such as rental income or profits generated by the property.

A common example is the revocation of a house donation to a child: in such cases, not only the property but also any rental income earned from it may need to be returned.

Time limits and deadlines for revocation of a donation

• Revocation due to ingratitude: must be initiated within 1 year of discovering the facts.
• Revocation due to the subsequent birth of children: must be initiated within 5 years of the birth or discovery of the child.

After these deadlines expire, it is no longer legally possible to act. To avoid legal pitfalls, it is always advisable to rely on professionals, such as those at Agenzia delle Successioni, for handling the donation or revocation of donation process in the best possible way.