Cohabitation agreement: what happens upon thedeath of one of the cohabitants?

When a cohabiting couple faces the death of one of the partners, in addition to the pain, very concrete questions emerge:

• Can I stay in the house?
• Am I entitled to anything from the inheritance?
• Does the cohabitation agreement really protect me?

Law 76/2016 recognized de facto cohabitation, but did not equate it to marriage for inheritance purposes. For this reason, it is essential to know in advance which rights the surviving partner is entitled to, and which are not.

• Nature and function of the cohabitation contract
• Termination of the contract in the event of death
• The surviving cohabitant is not a legitimate heir
• The fundamental role of the will
• The right to live in the home of residence
• Property relations with heirs
• Why you need estate planning

Nature and function of the cohabitation contract

A cohabitation agreement is an agreement between two adults who live together on a stable basis without being married or in a civil union. It must be drawn up through a public deed or a certified private agreement, and then submitted to the Municipality for registration in the registry.

With this instrument, cohabitants can regulate financial aspects of their shared life, such as contributing to expenses, managing assets acquired during cohabitation, the matrimonial property regime, or the use of the family home.

The contract, however, cannot modify the rules of inheritance, which remain governed by the civil code.

Termination of the contract in the event of death

The death of one of the cohabitants automatically terminates the contract. The clauses cease to have effect, except those relating to existing financial relationships that need to be settled with the heirs.

The professional who drafted the deed must notify the Municipality of the dissolution. It is important to emphasize that dissolution does not confer any inheritance rights on the surviving partner: any transfers of assets depend solely on the law or a will.

Upon the death of one of the cohabitants, the cohabitation agreement certificate or the cohabitation residence certificate may be useful in establishing the existence of a cohabitation between the parties, recognized by the State.

The surviving cohabitant is not a legitimate heir

In the Italian inheritance system, legitimate heirs are the spouse, children, ascendants, and, in their absence, other relatives up to the sixth degree.

A de facto partner is not one of these individuals. If the deceased partner did not leave a will, the inheritance passes entirely to his or her family. The surviving partner, in the absence of a will, receives nothing.

This is the most striking difference compared to marriage and civil unions, where the surviving partner enjoys automatic inheritance rights.

The fundamental role of the will

To protect the cohabitant, it is therefore essential to prepare a will. Through it, specific assets, a share of the inheritance, or the entire estate (as a universal heir) can be assigned.

Testamentary freedom, however, is not complete. The law protects forced heirs (children, spouse, parents), who are entitled to a minimum share of the inheritance. A cohabiting partner can only receive the disposable share, that is, the portion freely assignable by the testator.

The right to live in the home of residence

Even though he is not an heir, the surviving cohabitant enjoys significant guardianship over the house in which he or she lived with his or her partner.

If the property was the exclusive property of the deceased, the cohabitant has the right to continue living there for at least two years and up to a maximum of five years, in proportion to the duration of the cohabitation.

This is a temporary right, not a transfer of ownership. The right expires if the partner changes residence, gets married, or begins a new stable cohabitation.

If the home was rented, the protection is stronger. The surviving partner automatically takes over the lease. They therefore become the new tenant, with the same rights and obligations as the deceased partner. This avoids the risk of having to leave the home. This article provides a detailed discussion of lease succession.

Property relations with heirs

Upon the death of a cohabitant, financial issues may arise related to joint investments or informal contributions. The surviving cohabitant may request the return or reimbursement of sums paid, for example, for the purchase of a property registered solely to the partner, for renovation work, or for significant expenses incurred during the cohabitation.

The cohabitation agreement can also be useful in this regard, because it documents the methods of contribution and management of assets.

If the surviving partner is in need and unable to support themselves independently, they can ask their heirs for alimony. Alimony is not a portion of the inheritance, but a limited form of assistance, determined based on the length of the cohabitation and the financial circumstances of the inheritance.

Why you need estate planning

Cohabitation , even if governed by a contract, does not automatically guarantee the protection of the surviving partner. To ensure that, upon the death of one partner, the other is left without financial protection, it is necessary to complement the contract with tools such as a will and adequate estate planning.

A specialized consultation with the professionals at Agenzia delle Successioni allows us to evaluate the most suitable solutions for the couple's situation and prepare the necessary tools to truly protect your partner.

It is important to remember that the reference point is governed by Italian law, which may be subject to updates, modifications, and replacements.

This contract is often chosen by those who do not identify with a religious dimension but still wish to give clear and peaceful form to their emotional relationship. It can be adopted by heterosexual and homosexual couples with equal ease, fully respecting their sensitivities. In some cases, it is also used between people bound by a deep friendship, when they feel the need to protect and organize important aspects of their shared life.