In family and succession law, one of the most frequent issues concerns the rights of a former spouse over the inheritance, especially when separation has occurred but divorce has not yet been finalized. I personally handled a very similar case, assisting P., the sole owner of a property, who, after separating from his wife A., wanted to understand whether and how to protect her in the event of his future passing.
The mistaken assumption: "separated = excluded from the inheritance"
The doubt stemmed from a mistaken yet very widespread assumption: P. was convinced that, being separated, his former wife no longer had any inheritance rights. In reality, the rules are different. As provided by the Italian Civil Code, the separated spouse retains the same inheritance rights as a non-separated spouse, except in cases where the separation has been attributed to their fault. Only divorce definitively eliminates the status of heir.
In P.'s case, since there had been no fault attribution, his wife A. would still have been entitled to a share of the inheritance — the so-called reserved share — regardless of the husband's wishes. We therefore clarified that, at the separation stage, protection of the former spouse was already guaranteed by law.
Solutions for structured protection after divorce
At that point, however, the client wanted to go further and ensure more structured protection, also in view of a future divorce that would automatically exclude his wife from the succession. We therefore assessed the possible operational solutions.
The first path was the testamentary one: through a will, it is possible to allocate a share of the estate to the former spouse, in compliance with statutory limits and the rights of any other heirs. This solution offers flexibility and planning.
We then also analysed lifetime alternatives, such as a donation or the transfer of a share of the property. A donation is certainly possible, but must be carefully assessed because it is subject to particular rules, such as collation and possible reduction in the event of infringement of the rights of forced heirs. Different is the transfer carried out within separation or divorce agreements, which can also take place with tax advantages and without necessarily involving monetary consideration.
The combined solution adopted
In the actual case, we opted for a combined solution, calibrated on the family and patrimonial balances, ensuring that P. could protect A. without exposing himself to future risks.