The divisio inter liberos: analysis of ordinance no. 9888 of 2024

The topic of inheritance division continues to hold central importance in family law, especially in light of recent judicial rulings. Ordinance no. 9888 of April 11, 2024, issued by the Court of Cassation, specifically addresses the figure of divisio inter liberos, clarifying the requirements and its functioning in relation to Articles 733 and 734 of the Italian Civil Code.

The definition of divisio inter liberos

According to the maxim expressed in the ruling,

Divisio inter liberos - Configurability - Requirements - Difference with the hypothesis of Article 733 of the Civil Code. The so-called divisio inter liberos, governed by Article 734 of the Civil Code, occurs when the testator intends to directly divide, either totally or partially, their assets among the heirs, by forming shares and identifying the goods of each share, thus preventing the emergence of hereditary community, while, in the hypothesis under Article 733 of the Civil Code, the testator does not divide their assets but merely dictates the rules for future division, with binding effect for the heirs.
This definition highlights how the divisio inter liberos can prevent the creation of an hereditary community, allowing the testator to clearly assign specific goods and shares to each heir.

Requirements and differences with Article 733 of the Civil Code

To fully understand the significance of the divisio inter liberos, it is essential to analyze its requirements. This form of inheritance division requires that the testator disposes precisely and in detail about the goods to be assigned and the shares to be allocated to each heir. In this way, a situation of uncertainty or conflict among the heirs is avoided, as everything is established clearly and bindingly.

  • The testator must explicitly indicate the goods to be assigned;
  • Must define the shares due to each heir;
  • Must prevent the creation of an hereditary community.

In contrast, Article 733 of the Civil Code provides that the testator does not make an immediate division but merely establishes rules for a future division. This approach can lead to greater uncertainty and potential disputes among the heirs, as there is no clear assignment of goods.

Conclusions

Ordinance no. 9888 of 2024 offers an important opportunity to reflect on the management of successions and the importance of adequate estate planning. The divisio inter liberos represents an effective solution to avoid conflicts among heirs and ensure a clear and fair distribution of the estate. It is essential that testators are aware of the differences between the two forms of inheritance division to make informed decisions and best meet the wishes expressed in the will.

Bianucci Law Firm