Spouse and children do not accept the inheritance if they live in the family home

The permanence of children in the family home together with the surviving parent does not constitute that possession of hereditary property which, in the absence of an inventory and if lasting for more than three months, entails, pursuant to Article 485 of the Civil Code, the acceptance of the inheritance by conclusive fact. This was affirmed by the Supreme Court in its judgment 1551 of 23 January 2026.

The case stems from a mortgage loan secured on a house co-owned by two spouses. After the death of the wife, the creditor bank acted on the grounds that those called to the succession - the husband of the deceased and the two children - had become pure heirs because they remained in the flat and because, being "in possession" of the property, they should have drawn up the inventory within three months, as provided for in Article 485.

In the court of first instance it was established that the property was at the disposal of the named parties, but their positions were distinguished. In the case of the surviving spouse, it was ruled out that his or her permanence could be read as possession relevant for the purposes of Article 485, since it was to be correlated with the rights of habitation and use over the family home attributed to him or her by Article 540(2) of the Civil Code. With regard to the children, the court, on the contrary, held (in a judgment upheld on appeal) that the material relationship with the dwelling house constituted a situation ofpossession of hereditary property and that the failure to make an inventory had entailed the acquisition of the inheritance once the three-month period of possession had expired.

In the Court of Cassation, the children challenged this last passage, arguing that once the surviving spouse's rights of habitation and use of the family home had been recognised, the enjoyment of the property was drawn into the sphere of those rights; their cohabitation could not therefore be qualified as autonomous "relevant" possession, within the meaning of Article 485, for the purpose of determining acceptance of the inheritance by conclusive fact.

The Supreme Court therefore upheld the grounds of appeal. It was first observed that the rights referred to in Article 540(2) represent a legatee ex lege and are therefore acquired automatically at the opening of the succession, whereas the status of heir, as a rule, requires acceptance.