With collation by imputation, the value of the same donation is redistributed.
Co-heirs should not be prejudiced by the fact that instead of the donee (who is also a co-heir), the children and grandchildren of the latter participate in the succession
In a recent judgment, No. 17409, the Court of Cassation clarifies certain aspects of the functioning of the collation institution, emphasizing that the heir must not only collate what they personally received but also, under certain conditions, what their descendants received from the deceased.
In Principle
The Court observes that, under current law, the heir is only obligated to collate the donations personally received, excluding any other gifts made to their descendants or spouse (Article 739 of the Civil Code).
This rule undergoes a significant exception in the case of a descendant who inherits on behalf of the predecessor.
In this case, the descendant must collate “what was given to the predecessor, even if they have renounced the inheritance of the predecessor.”
The descendant who inherits on behalf of the predecessor must collate the donation received from their predecessor, even if they have not gained any advantage by renouncing the predecessor’s inheritance.
It follows, the Court observes, that in the deceased’s succession, the descendant who inherits on behalf of the predecessor is invariably required to collate the entire donation received from their predecessor, even if, by inheriting from them, they have gained a smaller benefit due to competition with individuals unrelated to the deceased’s succession.
The Collation Institution
When the gift involves real estate, the gifted co-heir does not need any dispensation from collation to retain the gifted asset, attributing its value to their own share, as the law itself (Article 746 of the Civil Code) reserves the choice between in-kind contribution and contribution by imputation for them.
Collation, in both forms provided by the law (in-kind and by imputation), represents an institution ordained by the law for the formation of the estate mass, with the aim of ensuring balance and relative equal treatment among co-heirs. This ensures that the value ratio among various shares is not altered and guarantees each co-heir the possibility of obtaining a quantity of assets proportionate to their own share.
Collation in Kind
Collation in kind consists of a single operation, which involves a real increase in the communal assets to be divided.
With collation in kind, the asset becomes, in real terms, a subject of common ownership between the donee and the other co-heirs. It will be divided among the co-heirs along with other assets present in the estate, based on their respective inheritance shares.
Collation by Imputation
Collation by imputation requires the debit of the value of the donated assets to the share of the donee heir and the simultaneous withdrawal of a corresponding quantity of assets by the non-donee heirs. Therefore, only in the case of collation by imputation (not in-kind), the assets always remain in the ownership of the donee co-heir, who retains them based on the received donation and must contribute only the monetary equivalent to the estate, which typically occurs only in theory.
With collation by imputation, the value of the same donation is instead divided: through the method of withdrawals or an equivalent approach, the non-donee co-heirs obtain, in addition to the value of their share without collation, the value that corresponds to the gifted asset in proportion to their own share. The donated asset, contributed by imputation, remains in the ownership of the donee.
