By Elena Marchetti · Legal & Estate Planning
A British couple purchases a farmhouse in Tuscany for €840,000. They have three adult children — one of whom they are estranged from — and a straightforward will drafted in the UK leaving everything to each other and then equally between the two children they are close to. They assume Italian law is irrelevant; the will is English, they are English, and the property is just a holiday home.
This assumption is wrong, and it will cause their estate to be contested under Italian law by the estranged child, potentially forcing either a buyout or a court-ordered sale of the property after both parents have died.
Forced Heirship and the Reserved Share
France, Spain, and Italy all operate forced heirship systems — civil law regimes in which a proportion of an estate is reserved by statute for certain family members (typically children and, in some circumstances, a surviving spouse) regardless of what the deceased specified in their will. The reserved proportion is called the réserve héréditaire (France), legítima (Spain), or quota di legittima (Italy).
In Italy: with one child, the reserved share is 50% of the estate. With two children, it is 66%. With three or more, 75%. The remaining 25% is freely disposable — meaning the owner can direct it to whoever they choose, including charities, a partner, or one particular child.
In France: with one child, 50%. Two children, 66.6%. Three or more, 75%. The rules are substantially the same as Italy's, with some additional provisions protecting a surviving spouse's right to remain in the family home.
In Spain: the legítima system reserves two-thirds of the estate for children collectively. One-third is reserved as strict legítima (distributed equally among all children). A further third — the mejora — can be distributed unequally among the children but cannot be redirected to non-children. Only one-third is entirely freely disposable.
The consequence for our Tuscany couple is this: under Italian law, if the estranged child claims their quota di legittima (25% in a three-child estate), they have a legal right to that share of the Italian property's value — either in kind (a share of the property itself) or as a financial payment from the estate. The couple's will directing the property to the other two children does not extinguish that claim; it creates a liability that the estate must satisfy.
Brussels IV: The Escape Valve — If You Use It
In August 2015, EU Regulation 650/2012 — known as Brussels IV — came into force across EU member states (excluding Denmark, Ireland, and the UK). The regulation allows EU residents and non-EU nationals to elect that their entire succession — including assets in EU member states — is governed by the law of their nationality rather than the law of the country where the assets are located.
This is transformative for non-EU buyers. A British citizen buying a villa in Italy can, under Brussels IV, elect that English law governs the succession to their Italian property. English law has no forced heirship. The will as drafted — leaving everything to the two children — would be valid and enforceable, with no reserved share available to the estranged third child.
The election must be made explicitly in the will. A statement such as: "I hereby elect that the law of England and Wales shall govern the succession to all of my estate, including immovable property situated in EU member states, pursuant to Article 22 of EU Regulation No. 650/2012."
The problem: the vast majority of international property buyers never make this election. Either the UK solicitor who drafted the will was not aware the property existed in Italy, or the Italian notary was not consulted, or no one connected the dots between the estate plan and the foreign property. A UK Law Society survey estimated that fewer than 15% of English wills involving EU property contain an explicit Brussels IV election.
The Renvoi Trap
For buyers who did not make a Brussels IV election, a second complexity arises: the renvoi doctrine. Some EU member states, when applying foreign law to a succession, will apply the foreign country's conflict-of-law rules — which may point back to the property's location country. French courts, in particular, have historically applied renvoi in estate cases, which can create circular references between French and foreign law that undermine the intended effect of a foreign will.
Post-Brexit, British nationals can no longer rely on Brussels IV in the same way — the UK ceased to be an EU member state, and the regulation's provisions as regards the UK's mutual recognition have complex post-Brexit interpretations. Specialist cross-border succession advice from a lawyer qualified in both jurisdictions is essential; an English solicitor and an Italian avvocato each working in isolation may produce legal documents that conflict at the critical moment.
Practical Fixes
Explicit Brussels IV election (for EU nationals, or those eligible to claim EU nationality). Make the election in the English will, and have the Italian or French property registered with a note of the election in the relevant land registry where possible.
Local mirror wills. Many cross-border estate planners recommend executing a separate will in each jurisdiction — an English will for UK assets, an Italian will for Italian assets — drafted in coordination by lawyers in both countries. Each will should explicitly state its limited geographical scope to avoid inadvertent revocation.
Usufruct and bare-ownership splits. In France and Italy, a common estate-planning structure transfers the bare ownership (nue-propriété / nuda proprietà) of the property to the intended heirs during the owner's lifetime, while the owner retains a life interest (usufruct) allowing full use and enjoyment until death. At death, the life interest extinguishes and full ownership passes automatically to the bare-owner heirs without going through probate. The asset is outside the estate for forced-heirship purposes. The gift of bare ownership may have its own tax implications — a French notaire or Italian commercialista should model both scenarios.
Corporate structure. Holding the property through a company means the succession is to the shares of the company rather than to the underlying real estate. Share succession is governed by the law of incorporation rather than by the lex situs (the law of where the property sits). This route adds ongoing corporate compliance costs and may trigger additional transaction taxes on acquisition, but eliminates forced-heirship exposure for buyers who prioritize succession clarity above all else.
The practical advice: within six months of purchasing any property in France, Spain, or Italy, commission a cross-border estate plan from a specialist in both jurisdictions. The cost is typically €1,500–€4,000. The alternative — leaving the question open — is to give forced-heirship law a free hand in distributing an asset you spent a lifetime building.