The essay aims to illustrate the estate planning tools that Italian law provides for the needs of disabled children within the family. The happiness of families is often undermined by uncertainty about their children with disabilities, especially regarding the availability of resources to guarantee long-term financial support after the parents’ death. Effective estate planning, therefore, becomes essential. In Italy, finding suitable legal instruments to protect disabled individuals has long been difficult due to the peculiarities of civil law, which hinder the identification of safe and efficient solutions. The trust, common in common law countries, is foreign to Italian legal tradition, but ratifying the 1985 Hague Convention allowed the use of so-called “internal trusts.” However, their application remains complex and uncertain. In 2005, Article 2645-ter of the Civil Code introduced destination bonds, also aimed at protecting disabled persons, though these too revealed interpretative and managerial limits. Law No. 112 of 2016 (“After Us” Law) marked significant progress by recognizing and facilitating the use of trusts, destination bonds, and special funds, supported by favorable tax measures. Despite these advances, problems persist concerning protection from creditors and forced heirs. Bold interpretative approaches are needed to strengthen these protections without organic reform. In light of the Italian Constitution and the 2006 UN Convention on the Rights of Persons with Disabilities, such interpretations could ensure greater legal and financial security for people with disabilities and their families.
Estate Family Planning to Protect Members with Disabilities. Potential and Limitations of the Italian Legislation
S. Troiano
2025-01-01
Abstract
The essay aims to illustrate the estate planning tools that Italian law provides for the needs of disabled children within the family. The happiness of families is often undermined by uncertainty about their children with disabilities, especially regarding the availability of resources to guarantee long-term financial support after the parents’ death. Effective estate planning, therefore, becomes essential. In Italy, finding suitable legal instruments to protect disabled individuals has long been difficult due to the peculiarities of civil law, which hinder the identification of safe and efficient solutions. The trust, common in common law countries, is foreign to Italian legal tradition, but ratifying the 1985 Hague Convention allowed the use of so-called “internal trusts.” However, their application remains complex and uncertain. In 2005, Article 2645-ter of the Civil Code introduced destination bonds, also aimed at protecting disabled persons, though these too revealed interpretative and managerial limits. Law No. 112 of 2016 (“After Us” Law) marked significant progress by recognizing and facilitating the use of trusts, destination bonds, and special funds, supported by favorable tax measures. Despite these advances, problems persist concerning protection from creditors and forced heirs. Bold interpretative approaches are needed to strengthen these protections without organic reform. In light of the Italian Constitution and the 2006 UN Convention on the Rights of Persons with Disabilities, such interpretations could ensure greater legal and financial security for people with disabilities and their families.
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