How is succession applied in the case of presumed death?

When ten years have elapsed since the date of the last known news of the missing person, the competent court, upon application by the public prosecutor, may issue a judgment declaring the individual presumed dead as of that date. Under no circumstances may such a declaration be issued unless at least nine years have passed since the missing person reached the age of majority.

A declaration of presumed death may also be issued even in the absence of a prior declaration of absence. If an application for presumed death is rejected, it may not be resubmitted until at least two years have passed.

Once the judgment declaring presumed death becomes legally effective, those who were granted temporary possession of the absentee’s assets—or their legal successors—are entitled to freely and lawfully dispose of such assets. However, an inventory of the assets must be conducted beforehand.

Upon the enforceability of the judgment, the spouse of the presumed deceased is legally permitted to remarry.

Should the person declared presumably dead reappear or be proven to be alive, they are entitled to reclaim their property in its current condition and to receive compensation equivalent to the value of any assets that were sold. The declaration of existence of a person previously presumed dead—or the subsequent confirmation of their death—may be sought at any time by the public prosecutor or any interested party, and must involve all individuals who were parties in the original proceedings.

The matter of presumed death and succession involves a high degree of legal complexity, which will be explored in detail below.

What is presumed death?

A declaration of presumed death is a specific legal mechanism used to recognize a person’s natural death in cases where direct proof is unavailable. Once ten years have passed since the last known information about the missing person, the public prosecutor may petition the court for such a declaration.

The petition must be submitted by means of a formal application, indicating the name, surname, and domicile of the presumed legal heirs of the missing person, as well as—if applicable—the name and contact details of any legal representatives, attorneys, or other parties who, to the petitioner’s knowledge, would be affected by the legal consequences of the declaration, either by loss of rights or the imposition of obligations.

Six months after the judgment is issued, the judge—upon request of the petitioner—shall schedule a hearing by decree, summoning the petitioner and the individuals listed in the application. The decree also sets a deadline for service of notice, which must be carried out by the petitioner. A copy of the decree is sent to the public prosecutor. During the hearing, the judge questions the parties in attendance regarding any facts deemed relevant to the case.

How does succession occur following a presumed death?

One of the most debated legal questions concerns whether a declaration of presumed death gives rise to a genuine succession process. While some legal scholars argue that the heirs merely acquire free disposal of the assets without formal succession, the prevailing legal doctrine and case law fully equate the effects of presumed death with those of actual death. This interpretation is supported by the presence of all elements characteristic of a true succession.

In particular, the Italian Supreme Court (Corte di Cassazione) has held that a declaration of presumed death triggers an actual succession mortis causa in favor of the presumed heirs of the declared deceased. This conclusion is supported by the rules governing the transfer of the deceased’s estate to their heirs and legatees, as well as by the implicit application of succession law, inferred from the absence of provisions concerning liabilities in the estate.

Succession is deemed to occur as of the date to which the presumed death is retroactively attributed. The legal effects of the acceptance of inheritance are also backdated to that same date. However, the inheritance is not formally opened until the judgment becomes legally enforceable.

Presumed death and remarriage

One of the legal effects of a declaration of presumed death is that the surviving spouse of the declared deceased is permitted to enter into a new civil marriage. However, the new marriage may only be lawfully contracted after the judgment has become legally effective. This judgment has the effect of dissolving the marital bond, retroactive to the date of the presumed death.

Until the judgment becomes enforceable, the spouse cannot legally demonstrate freedom of marital status, which is required in order to remarry.

If the missing person is later found alive, any marriage entered into on the basis of the presumed death judgment is considered null and void.

It is important to note that a civil declaration of presumed death does not allow the spouse to contract a new canonical (Catholic) marriage, as the civil judgment does not dissolve a religious marriage under Canon Law. The Catholic Church has its own procedures, governed by the Code of Canon Law, allowing remarriage only when there is moral certainty (moralis certitudo) of the death of the missing spouse.

To explore matters related to presumed death and succession, you may contact Agenzia delle Successioni, whose team of experienced professionals can provide appropriate guidance and assistance in similar legal situations.