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Comparative analysis of succession law in Italy, U.K and United States

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  • Comparative analysis of succession law in Italy, U.K and United States

    Dear all,

    According to yours requests, I’ve written a short article, that shows a difference among succession law in Italy, U.K and United States. If you have any questions, please, do not hesitate to contact me here, or on my website.

    Although there is a common idea that in common law countries there is unlimited freedom to will your estate to whomever you choose this is only relatively true.

    Civil law countries such as Italy protect spouses and children with the legal succession granting them what is known as the “reserved quota”.

    This means that those so called “forced heirs” are entitled to a portion of the assets of the deceased.

    While this principle in Italy is regulated by the law, in the U.K the judge has the power to assess the succession rights of the so called “dependents”.

    In the USA since succession law is not a federal issue, the situation is regulated differently in each state. In some of them we find a reserved quota for the spouse but not for the children.

    In the U.K the Inheritance Act of 1975 regulates the position of the “dependents”.

    The dependents are those close members of the family who can prove to be economically dependent on the deceased. Such dependants could be the surviving spouse, a civil partner or a child. The court, keeping in mind their position, can dispose in their favor.

    In general terms in the USA the surviving spouse is the most favored. According to the 1990 Uniform Probate Code, intestate succession rules that the surviving spouse is entitled to the entire asset, and he/she is the only one entitled to legal protection from intentional disinheritance by the deceased in all States except Louisiana.

    Although the U.S. Supreme Court declared it contrary to the Constitution stating that states should regulate inheritance law taking into consideration the evolution of family structures, not all states grant succession rights to members of non traditional families: surviving partners are seldom included in the circle of beneficiaries.

    In the USA legitimate inheritance principles are the object of intense debates. In particular it is subject to criticism for the fact that the rights of the surviving spouse are not connected to the duration of the marriage and might not be affected even by divorce proceedings.

    In general terms in civil law countries and in the American system the succession appears to be regulated mainly by the law while in the U.K the role of the judge has been favored.

    Avv. Giandomenico De Tullio