ITALY Law and Practice Contributed by: Paolo Ludovici and Andrea Mirabella, Gatti, Pavesi, Bianchi, Ludovici
• Where the testator leaves the surviving spouse (or a surviving same-sex civil union partner) and: (a) a sole descendant, they are entitled to one- third each (the remaining one-third represents the freely disposable portion); (b) more than one descendant, one-quarter is for the surviving spouse (or civil union partner) and one-half for the descendants (the remaining quarter represents the freely disposable por - tion); and (c) his/her parents, the surviving spouse (or civil union partner) is entitled to one-half, while the parents are entitled to one-quarter (the remain - ing quarter represents the freely disposable portion). • Where the testator leaves only ascendants, they are granted one-third of the testator’s estate (the remaining two-thirds represent the freely dispos - able portion). 2.4 Marital Property General Principles The statutory property regime for married couples is the community of property regime. However, married couples can at any time switch to the separation of property regime. Community of Property Regime The Italian Civil Code identifies the community of property regime as the property regime applicable by virtue of law where the spouses or the same-sex civil union partners have not opted for the separation of property regime or for a conventional discipline of the estate owned under the community of property regime. Under the community of property regime, the spouses or the civil union partners own in equal shares the property acquired, either jointly or severally, during the marriage or the civil union, unless that property can be considered a “personal belonging” of one of them. Among others, the Italian Civil Code includes within “personal belongings” properties purchased before the marriage, and properties acquired during the mar - riage or the civil union by way of donation or of suc - cession.
The property included in the community of property regime can be seized by the creditors of one of the spouses or civil union partners only once the personal estate of the latter has already been exhausted, up to the value of the common property’s share pertaining to the debtor and subordinately to the rights of the Spouses (and civil union partners) may opt for the legal separation of property regime, under which the spouses remain the exclusive owners of the property acquired by them both before and after the marriage. Conventional Community of Property Conventional community of property is a regime of legal community of property modified by mutual agreement between the spouses, within certain limits. Pre-Nuptial Agreements creditors of the common property. Separation of Property Regime Pre-nuptial agreements are not provided for by Italian law. The Italian Supreme Court has always deemed null and void any agreement made in contemplation of a future divorce. 2.5 Transfer of Property Transactions that do not result in taxable capital gains include gratuitous transfers, such as successions and gifts. With reference to shareholdings, taxable capital gains are determined as the difference between considera - tion received and cost or the purchase value subject to taxation, increased by any charge inherent in their production, including inheritance and gift tax, exclud - ing interest expense. In the case of acquisition by inheritance, the value defined or declared for inheritance tax purposes is assumed to be the cost. For shareholdings exempt from inheritance tax, the fair value at the date of the opening of the inheritance is adopted. In the case of acquisition by donation, the donor’s cost is assumed as the cost.
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