Inheritance: Is It Due To An Unborn Child?

The inheritance is a legal act through which a subject, upon his death, transmits assets, rights and even obligations (i.e. debts). Whoever receives the inheritance is, in fact, the heir. The legal regime that regulates inheritances is the succession book of the civil code.

In general, whoever makes a will – the testator – can freely designate his heirs. The heirs can be natural or legal persons (for example, you can decide to allocate your assets to an NGO).

However, there is a limit, since in addition to the heirs indicated by the testator, there are legitimate heirs governed by title II of the civil code. These subjects, therefore, have the right to inherit at least part of the assets. Returning to the initial question, can a child who has not yet been born be considered an heir? Let’s see what the Civil Code says about it.

Succession: who can inherit?

In succession law it is important to take into account the concept of legitimate heir. This is because, regardless of the will of the testator, legitimate heirs cannot be excluded from the inheritance.

The law, in fact, gives them a part of which the testator cannot deprive them, the legitimate share. The legitimate heirs are:

• Children.
• The spouse.
• If there are no children, brothers, sisters or their descendants, the parents succeed.

According to the Civil Code, therefore, children always inherit at least the legitimate share that corresponds to them. A part, in any case, is inherited by the surviving spouse.

Does a child who has yet to be born have the right to inherit?

Children not only have the right to inherit, the law also sets a legitimate share. The problem arises when the child has yet to be born; in this case there are some limitations. According to the art. 462 of the Civil Code, “all those who were born or conceived at the time of the opening of the succession are capable of succeeding”.

It is important to understand, first of all, that under the law anyone who is not yet born cannot be considered a natural person with legal capacity. According to civil law, legal capacity is acquired at the moment of birth, or with the separation of the fetus from the maternal body and with breathing at least for an instant. Therefore, a minimum life span is not indicated. Although the fetus is not considered a person for legal purposes, it enjoys rights that must be protected.

The law protects not only the life of the unborn child, but also their rights, including inheritance. A child who is to be born can therefore inherit, but it is a conditional right. That is, certain conditions must be met for the child to inherit.

The first condition is to be a person for legal purposes, that is, must be born alive and survive the separation from the mother for at least a moment.

If this requirement is not fulfilled, for example because the child is born dead, from a legal point of view it never existed. We can therefore say that the legacy remains pending and awaiting developments. If the condition is met, the newborn becomes an heir, otherwise the inheritance is distributed among the other heirs.

Can an inheritance be denied to a person?

In principle, all subjects who are not considered “unworthy” expressly by law or by means of a sentence can be heirs. For example, those who have committed serious acts against the deceased or relatives (murder, slander, fraud) are excluded from the succession.

There are also other limitations that prevent access to the inheritance. They cannot be heirs, with some exceptions:

• The guardian and the protutor.
• The notary, the witnesses and the interpreter.
• Who wrote or received the secret will.
• Who was not conceived at the time of the opening of the succession if legitimate and also to the future children of a living person (in the case of testamentary succession).

The goal, in any case, is to satisfy the will of the person with respect to their goods.