The legacy is a typical institution of the matter of succession and consists of a testamentary disposition by which the deceased prescribes the transfer of ownership of a certain asset or other rights (e.g. a claim) to another subject (legatee).

Example of testamentary legacy

The testamentary legacy can have as its object, as we have seen, a property or a right of the testator. An example? The legacy with which the testator disposes of a legacy with which he transfers to the legatee a jewel, a vintage car or the right to collect the claim he has against a third party.

With the legacy, therefore, a succession mortis causa is realized in a particular capacity. The main difference between the status of heir and that of legatee is given by the fact that the latter is not required to accept the legacy, as the transfer of ownership takes place automatically, at the time of the testator’s death.

This is provided for because, by clear regulatory provision, the legatee is not required to bear charges that go beyond the limits of the value of the legacy itself (art. 671 c.c.).

As known, however, the heir can be the recipient of an inheritance (or share of it) in which the debt positions are prevalent over the active ones; for this reason, it is always necessary to accept it, which can also take place with the benefit of inventory

The acquisition of the legacy is therefore carried out ipso iure, not requiring an act of express acceptance, without detecting the knowledge or not of the testamentary disposition by the beneficiary. Acceptance, however, is not entirely irrelevant. In fact, pursuant to art. 649 c.c paragraph 1 confirms that the purchase is final and can no longer be renounced.

Waiver of legacy

The legatee, as mentioned, does not need to accept the legacy, but can still renounce it (art. 649 c.c.).

For reasons of legal certainty, such a waiver may also be requested by the heirs concerned, who may ask the court to set a time limit within which the legatee must decide. Once the deadline has expired, the legacy can no longer be renounced.

The legacy ex lege in favour of the surviving spouse

It is considered a legacy by law the reservation in favour of the spouse contemplated by art. 540 c.c. which recognizes to the spouse, in addition to the share of the legitimate and regardless of the presence of children, the right of residence in the marital home. This is a right that is acquired automatically and regardless of the acceptance of the inheritance.

The alternative legacy

The alternative legacy is contemplated by art. 665 c.c, is the one that is characterized by the fact that the testator in the will has identified two or more specific assets, but the choice is left to the burden unless the same testator has reserved the choice to the legatee himself or to a third party.