Renouncing an inheritance while remaining in the deceased spouse’s home

«The real right of habitation, reserved for the surviving spouse under Article 540, paragraph 2, of the Italian Civil Code, pertains solely to the ‘home used as the family residence’—that is, the property where the spouses lived together on a stable basis before the decedent’s death, serving as the primary setting for their marital life. Therefore, this right cannot apply to two (or more) alternative residences, or to multiple properties that the spouses had access to and used temporarily, since the concept of a family residence necessarily refers to a single dwelling that constitutes—if not the only one—at least the main center of family affections, interests, and routines»

(Italian Supreme Court of Cassation – Second Civil Section – Ruling No. 7128 of March 10, 2023)

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Renouncing an inheritance is a declaration made by the heir (or potential heir) when they do not wish to accept the estate, for instance, if it is burdened by debts.
Article 521 of the Italian Civil Code explicitly states that anyone who renounces an inheritance is treated as though they had never been called to inherit and, therefore, will not become part of the decedent’s succession.

This raises the question: if a surviving spouse was cohabiting with the deceased at the time of death and chooses to renounce the inheritance, can they still retain the right to live in the primary residence, even if it forms part of the estate?

Article 540, paragraph 2, of the Civil Code provides a clear answer, granting the surviving spouse the right to use and reside in the deceased’s property.

According to this provision, upon the opening of the succession, the surviving spouse acquires ex lege (by operation of law) the rights described therein—even when the family home or the furniture within it has been bequeathed to third parties through a will.

As a result, the surviving spouse may claim these rights ipso iure (by virtue of the law itself), without having to initiate a legal action for reduction (i.e., to challenge testamentary dispositions that violate reserved shares).
The essential conditions for acquiring the rights of use and habitation are:

• that the property was used as the family residence, and
• that the deceased held legal title (ownership) to the property.

Thus, the provision in Article 540, paragraph 2, of the Civil Code effectively leads to an increase in the entitlement of the surviving spouse, since the rights of use and habitation in the family home are in addition to the statutory inheritance share reserved for the spouse.

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