International Successions: the Scission System, Between the Court of Cassation and European Union Regulations
Managing an inheritance that crosses national borders is no longer an exception, but a complex reality that requires a clear distinction between the nature of the assets and the applicable law. Italian jurisprudence, led by the landmark judgment of the United Sections of the Court of Cassation No. 2867/2021, has consolidated an orientation that moves beyond the dogma of "unity of succession" in favor of the so-called "scission system."
The turning point established by the Court concerns cases where the national law of the deceased (for example, that of a Common Law country like the United Kingdom) does not consider the estate as a single entity (unicum). Under these circumstances, a genuine fragmentation occurs:
Movable assets: Governed by the law of the deceased's domicile (lex domicilii).
Property: Governed by the law of the State where the property is located (lex rei sitae).
This scission leads to the opening of two distinct successions, each with its own rules regarding the identification of heirs, the methods of acceptance, and the protections afforded to family members.
While this framework is rooted in Law No. 218/1995, it must be harmonized with EU Regulation No. 650/2012 for successions of persons deceased on or after August 17, 2015.
Although the Regulation maintains the law of the deceased's habitual residence as the general criterion, it introduces the possibility for the testator to choose the law of their nationality to govern the entire succession (professio iuris). Such an express choice can override the scission mechanism.
Furthermore, established jurisprudence clarifies that Italian rules on forced heirship (successione necessaria) do not constitute a principle of international public policy (ordre public). This means that a foreign law which does not provide such protection is not set aside for that reason alone.
Law No. 218/1995 provides a specific safeguard in this regard under Article 46, paragraph 2, but it applies only to a limited scenario: the succession of an Italian citizen that prejudices the rights of heirs residing in Italy. In such cases, the protection operates not because it is mandatory per se, but because Italian law becomes applicable through the mechanism of renvoi (referral).
A Practical Case: The Succession of "Mr. Smith"
To understand the impact of this rule, let us analyze the case of a British citizen, Mr. Smith, domiciled in London, who owns a bank account in England and an apartment in Rome. In his will, he excludes his son, leaving everything to a foundation.
In this scenario, the scission principle will apply:
The London account (Movable assets) will be regulated by English law (domicile), which provides for full testamentary freedom. The foundation will receive the entire balance, and the son will have no claim.
The Rome apartment (Property) will be regulated by Italian law (lex rei sitae). The son may therefore exercise an action for reduction (azione di riduzione) to obtain his statutory share (forced heirship) of the Roman property, partially overturning the testator's wishes.
However, it remains understood that had Mr. Smith expressly chosen English law in his will to govern the entire succession—including the real estate in Italy—such a choice would have been valid under the EU Regulation. This would have excluded the application of Italian law even for the apartment in Rome, consequently depriving the son of any statutory protection for that specific asset.
