Protection of forced heirs and international succession

by Benedetta Lucibello, Federica Daquino

Judgment No. 1356/2022 of the Court of Catanzaro represents an important precedent in the field of international succession law. It addresses the protection of forced heirs in the presence of assets located in multiple jurisdictions and succession governed by several legal systems. The case examined by the court of first instance, which was characterised by complex issues relating to jurisdiction, applicable law, and the protection of legitimate heirs, offers an opportunity to reflect on the relationship between Regulation (EU) No. 650/2012, Law No. 218/1995, and the principles of Italian inheritance law.

The case

The case originates from the death of an individual holding dual Italian and U.S. citizenship, who had been living in the United States for over fifty years. The deceased had executed a will in New York, providing that her entire estate, consisting of a U.S. bank account, a property located in Italy, and certain movable assets, should be devolved to her sister, except for certain movable assets which were left to her children.

The three children of the deceased brought an action before the Court of Catanzaro against the deceased's sister, requesting (i) a declaration of their status as forced heirs and of the infringement of their respective reserved shares; (ii) the reduction of the testamentary dispositions; (iii) the restitution of any assets and sums devolved to the defendant in excess of the available share. According to the claimants, pursuant to Article 537(2) of the Italian Civil Code, they were entitled, as forced heirs, to a share equal to two-thirds of the estate, leaving one-third as the disposable portion.

In particular, the plaintiffs invoked Italian jurisdiction by referring to Law No. 218/1995, specifically Articles 3 and 50, arguing that it should apply to the case in light of the defendant's residence in Italy and the deceased's Italian citizenship at the time of her death. The defendant appeared in court and contested the plaintiffs’ claims. She also raised an objection to the Italian court's lack of jurisdiction, arguing that the applicable provision was Regulation (EU) No. 650/2012, rather than Law No. 218/1995.

The judgment

The judgment addresses the issues of jurisdiction and applicable law in cross-border succession cases.

Firstly, the Court of Catanzaro reconstructed the relevant legal framework, highlighting that, alongside the domestic provisions contained in Articles 46–50 of Law No. 218/1995 and international conventions, Regulation (EU) No. 650/2012 now constitutes the central framework of private international law on succession for Member States (except for Ireland and Denmark). As a result, the Regulation largely supersedes and replaces, with limited exceptions, the domestic legislation set out in Law No. 218/1995.

The court of first instance clarified that the provisions contained in Regulation (EU) No 650/2012 have universal application pursuant to Article 20 ('The law designated by this Regulation shall apply even if it is not the law of a Member State'), and therefore apply without geographical limitation,  even when called upon to regulate a non-European succession situation. On this basis, the court declared the applicability of the general criterion of the deceased's habitual residence at the time of death (Articles 4 and 21, and Recital 23), which governs both the applicable law and jurisdiction, resulting in a general alignment between forum and ius.

In addition to the main criterion of the deceased's habitual residence, the law of another State may be applied if the circumstances of the case show that the deceased had manifestly closer connections with that State (Article 21.2 and Recital 24).

In the present case, the deceased, who was an Italian and U.S. citizen, had been living permanently in the United States of America for more than fifty years. The court of first instance did not consider the deceased's limited ties with Italy, limited to periodic visits, to be sufficient to demonstrate a “closer connection” with the Italian legal system. Therefore, the general criterion of habitual residence applies.

The same conclusion would also apply through the institution of professio iuris. In fact, to meet the needs of individuals who have moved to a different country but wish to maintain a connection with their country of origin, Regulation (EU) No 650/2012 allows the deceased to choose the law of their country of citizenship at the time of their choice or at the time of death (Article 22.1). The choice must be expressly stated in a disposition of property upon death or must clearly result from such a disposition (Article 22.2).

In the present case, however, the deceased in her will referred to the law of the State of California. The Court interpreted this reference as an implicit professio iuris within the meaning of Article 22(2) of Regulation (EU) No 650/2012. Therefore, both the application of the general criterion and the exercise of professio iuris lead to the application of Californian law and, consequently, the jurisdiction of the US court for settling the estate.

A different outcome applies with respect to the property located in Italy. Despite the unitary approach of Regulation (EU) No 650/2012, the referral mechanism under Article 34 requires the application of the lex rei sitae. US law, characterised by a “scissionist approach” that distinguishes between immovable property (governed by the law of the place where it is located) and movable property (governed by the law of the domicile), refers to Italian law for immovable property located in Italy. As a result, Italian jurisdiction is established and Italian Civil Code applies to the succession of that property.

For the aforementioned reasons and pursuant to Article 537(2) of the Italian Civil Code, the Court held that the plaintiffs were entitled to a forced share equal to two-thirds of the italian property, while the defendant was entitled to the available share equivalent to one-third.

Conclusions

The judgment by the Court of Catanzaro confirms the central role of Regulation (EU) No 650/2012 in determining jurisdiction in cross-border succession cases, emphasising the criterion of the deceased's habitual residence. The ruling is particularly significant as it extends the universality principle set out in Article 20 of the Regulation – originally conceived by the EU legislator solely with respect to the applicable law – to the question of jurisdiction, notwithstanding Article 4, which expressly limits jurisdiction to the courts of Member States.

Although innovative, this interpretation allows for greater systematic consistency in cross-border successions without affecting the referral mechanism to the lex rei sitae.