In 30 seconds
- The surviving spouse has the right of habitation over the house used as the family residence and the use of the furniture that furnishes it (Art. 540, second paragraph, c.c.).
- According to the Court of Cassation (order no. 20635/2025) the right arises at death, without the need for an application, and the judge takes it into account ex officio.
- Its value is calculated with the criteria of usufruct and deducted from the estate before the division.
- It applies to a single house: dwellings used only for holidays are not part of the family residence.
Updated on October 14, 2026.
When a spouse dies, alongside the grief comes right away a practical question: “Do I have to leave the house where we lived together, if the other heirs want to sell it?” The law answers with the right of habitation, a protection designed to prevent you, on top of the loss, from having to leave the place where you built your habits. In this guide we see how it works, how it affects the division of the inheritance and what happens when the family had more than one house.
What is the right of habitation?
Art. 540, second paragraph, of the Civil Code recognizes the surviving spouse’s right to continue living in the house used as the family residence and to use the furniture that furnishes it.
The right lasts for life and is an additional guarantee with respect to the share of the inheritance due to you: you can stay in the house even if the property is divided with the children or other heirs. For the other aspects of the succession you can see the guide on reserved shares.
Must it be requested from the judge?
No. The Court of Cassation (Section II, order no. 20635 of July 22, 2025, decided in chambers on July 1, 2025) dealt with the case of a widow competing with three children, in the lawsuit for the dissolution of the hereditary co-ownership. According to the Court:
- the right of habitation and use is attributed to the spouse as a legacy by operation of law, that is, it arises automatically at death;
- no specific application is needed in the division proceedings: the judge must recognize it even ex officio;
- failing to consider it is an error of law that may lead to the annulment of the judgment.
It is a right guaranteed by law: it ceases only if you voluntarily renounce it. For this reason, before signing any agreement with the other heirs, have what you are giving up assessed.
Next question: How are the shares divided between spouse and children? Who inherits without a will.
How does it affect the division of the inheritance?
The right of habitation has an economic value, and this value must be taken into account when the inheritance is divided.
- It is deducted from the estate. The value of the right is calculated and subtracted from the hereditary mass before forming the portions of the other heirs.
- It is valued like usufruct. To value it, criteria analogous to those of usufruct are used, which depend, among other things, on the age of the beneficiary.
- No rent to the other heirs. As long as the house is burdened by the right, for the other heirs it is an asset that produces no fruits: they therefore cannot demand a fee or a reimbursement because you live there.
A mistake in the valuation of the right or in the composition of the hereditary mass can distort the whole division. If you want to understand how the allocation of the property in the division is reached, also read the guide on inheritance and family home.
Do the other heirs want to sell the house where you live? Before answering or signing, it is worth having your right of habitation assessed. You can send the documents online and have them examined.
Is the holiday home protected by the right of habitation?
The right concerns only the house that was the family residence: the place where the spouses lived together stably and continuously, the main center of the family’s life. What happens if the family also had a country villa or a seaside apartment?
According to the Court of Cassation, the right of habitation cannot extend to two or more alternative residences. In the case examined, a spouse claimed the right both over the apartment in the city and over the country villa used for holidays, and the claim on the second house was not upheld. The reasons:
- The family residence is only one, the one in which daily life takes place, even if the family has several properties.
- Temporary or occasional uses, such as summer holidays, are not enough to make a house a “family residence”, even if a lot of time is spent there each year.
- The prevailing center of the interests and habits of the family is needed.
- The other heirs are protected. Extending the right to second homes would reduce the possibility for the children or other relatives to use or sell the assets received.
Which is the family residence is a question of fact: the real habits of the family must be proven, not just the registered residence.
What happens if the other heirs do not agree?
It often happens that the children or other relatives of the deceased want to sell the house or ask for rent from whoever has stayed to live there. Do not leave the property and do not accept requests for a fee before having them assessed: the right of habitation, if due, must be enforced in the division. For the general picture of who inherits and in what measure, also see the guide on succession without a will.
The route that usually works best
The possible routes
- Enforce the right of habitation and use in the division, without a specific application: it arises automatically at the spouse’s death.
- Voluntarily renounce the right, if you decide to do so.
- If the other heirs do not agree, point out to the judge that the right must be considered even ex officio.
Which usually works best and why
It depends on the case. It is usually worthwhile to enforce the right over the house that was truly the family residence, calculating precisely its value to be deducted from the estate, and not to renounce it without an assessment. On houses used only for holidays, by contrast, do not count on the right of habitation.
What to do right away
- Gather the documents of the inheritance and those of the family home.
- Do not renounce the right without having it assessed.
- If the other heirs ask to sell or to pay rent, have the situation checked before answering.
Each situation must be assessed on the documents of the specific case: this indication is not a promise of outcome.
Read also: Widower in the family home in Sant’Agnello: the spouse’s right of habitation
How Attorney Fiorentino can assist you
- Make a list of the assets of the inheritance, because the value of the right of habitation is calculated on the entire hereditary mass.
- Keep the documents that prove the house was the family home.
- Do not leave the house and do not accept rent requests before asking for an opinion.
The Firm also offers remote consultations, with documents sent online, and a written quote before the engagement. The offices are in Naples, Rome and Bari, by appointment.
Frequently asked questions
Does the surviving spouse have the right to stay in the family home?
Yes: Art. 540, second paragraph, c.c. recognizes the right of habitation over the house used as the family residence and the use of the furniture. According to the Court of Cassation (order no. 20635/2025) the right arises at the spouse’s death.
Must the right of habitation be requested from the judge?
No. According to the Court of Cassation it is a legacy by operation of law, with no need for an application: the judge must take it into account even ex officio in the hereditary division.
How does it affect the division of the inheritance?
Its value must be calculated, with criteria similar to those of usufruct, and deducted from the estate before forming the portions. As long as the property is burdened by the right, the other heirs cannot demand rent for the house occupied by the spouse.
Does the right also apply to the holiday home?
According to the Court of Cassation referred to, no: the right concerns only the family residence and cannot extend to several alternative residences or to properties used temporarily or occasionally.
Can one renounce the right of habitation?
Yes, but only by a voluntary choice. Before renouncing it is worth having the value of the right and the alternatives assessed.
Sources: Court of Cassation, Section II, order no. 20635 of July 22, 2025; Normattiva, Civil Code, Art. 540. Author: Attorney Renato Giuseppe Fiorentino, Naples Bar. Informational text, it does not replace an opinion on your case.
Related guides
(Read also): Legal guides from Studio Legale Fiorentino · Children from a first marriage and a new spouse: how the inheritance is divided and what protections exist · Inheritance rights of the de facto cohabitant and the civil-union partner (Law 76/2016)
Translated from the Italian original; updated on October 18, 2026.
Do you have a similar issue?
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