Surviving Spouse's Right of Habitation in Italy: What It Is and How It Works

What Article 540 of the Italian Civil Code says

Article 540, second paragraph, of the Italian Civil Code states that a spouse, even alongside other heirs, is entitled to the right of habitation in the home used as the family residence and the right to use the furniture in it, provided the home belonged to the deceased spouse or was jointly owned by both spouses. This reserve sits on top of the inheritance share the spouse is entitled to by law under the first paragraph of the same article, and it draws first on the portion of the estate free of other reserved shares, then, if that isn’t enough, on the spouse’s own reserved share and, where relevant, on the children’s.

The condition on ownership is stricter than it sounds: it’s enough that the home belonged to the deceased alone, or to both spouses together, as often happens with a home bought during the marriage and registered under joint private ownership. The right does not arise, however, if a third party also owned a share of the home, such as a brother of the deceased who co-owned the property with him.

Practical example: a married couple lives for years in an apartment registered solely in the husband’s name. When he dies, his wife can keep living there under Article 540, even though the apartment passes to their children as bare owners.

How it comes into being: a right created by law, not by an act

A surviving spouse’s right of habitation requires no separate legal act: no contract, no clause in a will, no application to file with anyone. It arises on its own the moment the estate opens, as a direct consequence of a legal norm that imposes it regardless of what the deceased or the heirs want.

That marks an important difference from the general right of habitation, set out in Article 1021 and the following articles of the Italian Civil Code: that version can be created by anyone, in favor of anyone, through a contract, a will, or adverse possession, and has no connection to marriage. Someone who holds this general right of habitation can use the home within the limits of what they and their family need, and Article 1023 of the Italian Civil Code clarifies that “family” also includes children born after the right began, adopted or legally recognized children, and people who live with the right-holder to provide them with services. That same boundary applies to a surviving spouse’s right, since both are rights of habitation under the same section of the code.

The difference from the heirs’ bare ownership

When a surviving spouse acquires the right of habitation in the family home, the other heirs, typically the couple’s children, inherit ownership of the property already limited by that right: they become bare owners, holding title to the home but unable to use or rent it out for as long as the spouse lives there. This split between using a property and owning it outright is the same logic behind usufruct, the broader arrangement that separates use from bare ownership. The arrangement here isn’t symmetrical: the spouse has full use of the house, while the heirs hold only its underlying value, which turns into full ownership once the right of habitation ends.

This arrangement lasts for the rest of the surviving spouse’s life. Unlike the general right of habitation, which the parties can limit in time through the act that creates it, the right reserved by Article 540 carries no built-in expiration date of its own.

The surviving unmarried cohabitant

Law 76 of 2016, known as the Cirinnà Law, introduced a separate protection for someone who lived steadily with a home’s owner without being married to them. Under Article 1, paragraph 42, of that law, a surviving cohabitant is entitled to keep living in the shared home for two years, or for a period equal to the length of the cohabitation if that exceeded two years, though never for more than five years in total.

The gap with a spouse’s right isn’t just about duration. The Italian Revenue Agency, ruling on a taxpayer’s request in 2018, clarified that a surviving cohabitant does not become an heir or a legatee of the property, because their claim is a personal right of enjoyment, a different thing from a property right; for that reason, it isn’t listed in the estate’s inheritance filing. The same ruling cites a principle from the Supreme Court of Cassation, holding that this right stems from cohabitation as a factual relationship and exists for one purpose: to give the surviving partner time to find another place to live; a permanent guarantee of the house lies outside that purpose. Proving the cohabitation relies on residency records, or on a self-declaration made under the ordinary rules for such statements.

This framework covers unmarried cohabitants only. For civil unions in the strict legal sense, no equally solid sources were found, so the comparison here stops at unmarried cohabitation.

In practice, anyone facing an inheritance involving a house, whether spouse, cohabitant, or heir, does well to clarify their position with a notary or a lawyer: the practical consequences, from the inheritance filing to dealings with the other heirs, depend on concrete details a professional can check case by case.