The Intestate Succession of Shares in a Joint-Stock Company (S.p.A.): The Italian Context

This work addresses the legal framework governing intestate succession—i.e., the inheritance of assets in the absence of a valid will—with specific reference to shares in an Italian joint-stock company (società per azioni or S.p.A.). The aim is to provide a detailed explanation, supported by practical examples, of how heirs succeed to the deceased shareholder’s position, what the consequences are in terms of ownership and management of the shares, what are the applicable taxes.

1. General Principles of Intestate Succession

Intestate succession occurs when the deceased has not left a valid will. In such cases, the estate is distributed by operation of law to the deceased’s relatives according to a statutory order of succession, beginning with the closest family members and extending to more distant relatives in their absence. If no legal heirs are present, the estate is devolved to the State.

Eligible heirs include natural persons (provided they were either born or conceived at the time of the deceased’s death) and, by testamentary disposition, legal entities such as companies or associations.
(“Inheritance is devolved by operation of law or, where validly executed, by will (Art. 457 Italian Civil Code). By will, companies or other entities may also be designated as heirs.”)

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2. Transmission of Shares in an S.p.A. to Heirs

2.1 Nature of Shares and the Principle of Transferability

Shares represent a shareholder’s participation in the capital of an S.p.A. As a general rule, shares are freely transferable, subject to statutory or by-law limitations. Upon the shareholder’s death, ownership of the shares transfers to the heirs according to the rules of inheritance law.
(“Shares are freely transferable, subject to legal or statutory restrictions on their circulation.”)

2.2 Mechanism for Heirs’ Succession to Shares

The death of a shareholder results in the transfer of ownership of the shares to the heirs or legatees, who step into the legal position of the deceased. Heirs are universal successors and thus inherit all rights and obligations of the deceased, including their shareholder status. A universal successor is one who accepts the inheritance (as opposed to a mere chiamato all’eredità, who has not yet accepted). The universal successor also assumes the deceased’s procedural standing in litigation.

By contrast, a legatee (beneficiary under a successione a titolo particolare) only succeeds with respect to specified assets or claims designated by the testator.

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3. Statutory and Legal Restrictions on the Transfer of Shares upon Death

3.1 Restrictive Clauses in the Articles of Association

The articles of association of an S.p.A. may impose specific conditions on the transfer of shares in the event of a shareholder’s death. Where an approval clause (clausola di gradimento) is included, the heirs acquire title to the shares only if the required approval is granted. If such approval is denied, the heirs are instead entitled to receive the liquidation value corresponding to the shares.

“The articles of association may impose particular conditions on the transfer of shares upon death. Except where an approval clause is provided and approval is granted, such conditions are ineffective unless they establish an obligation for the company or other shareholders to purchase the shares, or grant a right of withdrawal to the heirs […]. Where transfer to heirs is subject to an approval clause, heirs acquire ownership of the shares only if approval is granted; otherwise, they are solely entitled to the liquidation of their portion” (Tribunal of Bari, 8 June 2016, No. 3147).

Moreover, even if the heirs acquire title to the shares, the company’s bylaws may impose temporary restrictions on their transferability —e.g., a ban on transfer for a period not exceeding five years. These limits must comply with certain statutory requirements and guarantee that the heirs may realise the economic value of the shares.

In particular, the Civil Code expressly allows the introduction of a prohibition on share transferability in the articles of association, provided it does not exceed five years from the company’s incorporation or the adoption of the clause (Art. 2355-bis, para. 1, Italian Civil Code). However, any clause that significantly limits or prohibits the transfer of shares beyond this timeframe is enforceable only if it ensures the shareholder can realise the fair value of the shares

Such a prohibition may be:

a) Absolute: a general ban on any transfer; or
b) Relative: limited to certain categories of transferees.

• Examples of valid statutory clauses :

(a) A clause that prohibits the transfer of shares unless approved by the shareholders. Such approval must be expressed in a shareholders’ extraordinary meeting. If not, the transfer has no effect against the company.
(Notarial Council of Milan, Opinion No. 92/2007, 18 May 2007)

(b) A clause prohibiting the partial transfer of a shareholder’s stake, allowing transfer only if the entire shareholding is transferred. This does not constitute a prohibition on alienation under Article 2355-bis, nor does it amount to an “intransferability” provision under Article 2469(2). The insertion of such a clause triggers a right of withdrawal pursuant to Article 2437(2)(b), unless otherwise stipulated by the articles.
(Notarial Council of Milan, Opinion No. 201/2022)

3.2 Pre-emption Clauses and Other Restrictions

The articles of association may also contain pre-emption clauses or other forms of restriction on share transfers, granting existing shareholders or the company a right of first refusal before the shares are transferred to heirs or third parties.

The most common restrictions on the circulation of shares include pre-emption clauses, approval clauses, and clauses that apply upon the death of a shareholder.
These restrictions are valid only if the company’s bylaws provide either:

a) An obligation for the company or other shareholders to purchase the shares; or
b) A withdrawal right for the heirs.

The purchase price or liquidation value must be determined in accordance with the methods and criteria established by Article 2437-ter of the Civil Code.

Where a transfer upon death is subject to approval, heirs will acquire the shares only if approval is granted. Otherwise, they are entitled solely to receive the liquidation value.
(Tribunal of Bari, 8 June 2016, No. 3147)

The right to receive such payment expires after five years from the shareholder’s death (Art. 2949 Civil Code)—this limitation period starts from the date of death.
(Tribunal of Ancona, 13 January 2021, No. 30)

In all cases, the prohibition on patti successori (succession agreements) must be respected (Art. 458 Civil Code). Thus, clauses that stipulate an automatic transfer of a deceased shareholder’s shares to the surviving shareholders are unenforceable.

Nevertheless, the rules on share buy-backs remain applicable.

• Notarial Practice

“Restrictive clauses preventing an heir’s registration in the shareholders’ register are valid, provided that they offer the heir the right to realise the economic value of the shares according to the valuation criteria set out in Art. 2437-ter” (Notarial Council of Florence, Pistoia, and Prato, Opinion No. 13/2010).
“Statutory clauses giving surviving shareholders the right to acquire the deceased’s shares, within a specified timeframe and upon payment of a fair price (determined in advance), are valid and do not violate the ban on patti successori. This is because the rights in question arise only after the death and operate by law or will”
(Triveneto Notarial Committee, Opinion H.I.9/2004).
“Consolidation clauses (patti di consolidazione), that make share transfer upon death conditionalm are enforceable only if they impose an obligation on the company or shareholders to purchase the shares at a fair value, determined according to preset criteria —unless the transfer is subject to approval and such approval is granted” (Triveneto Notarial Committee, Opinion H.I.5/2001).

•  Summary Table – Key Statutory Limitations:

Clause Type                                             Effect on Heirs’ Rights
Pre-emption                                            Heirs must offer the shares to existing shareholders before acquiring them

Approval (Gradimento)                        Heirs’ acquisition of shares may be subject to approval by corporate bodies or                                                                     shareholders

Quantitative Limits                               The articles may impose minimum or maximum thresholds for shareholding

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4. Procedure for the Transfer and Exercise of Shareholder Rights

4.1 Formalities for the Transfer of Shares to Heirs

For registered shares, the transfer to heirs requires an entry in the shareholders’ register. This occurs upon presentation to the company of documents evidencing:

a) The death of the shareholder;
b)The identity and status of the heirs.

For dematerialised shares, the transfer is completed through registration in the accounts maintained by authorised financial intermediaries. The central securities depository (Monte Titoli or equivalent) then notifies the intermediary, who in turn informs the issuing company. The company will then update its shareholders’ register based on these notifications.

“The transfer of dematerialised shares is carried out by book-entry in the accounts used to record movements of financial instruments (Art. 2355, para. 5, Civil Code). Such transfer may only occur through authorised intermediaries. The central depository communicates the registration to the intermediary, who informs the issuing company, which updates the shareholders’ register in accordance with the intermediaries’ reports” (Art. 83-undecies, TUF).

4.2 Practical Examples

Example 1: Intestate Succession Without Restrictions
Shareholder Tizio holds 1,000 registered shares in an S.p.A.. Upon his death—without having made a will—his three sons inherit his estate as legitimate heirs. Each son becomes entitled to one-third of the shares.
They provide the company with the necessary documentation (death certificate, declaration of succession, sworn affidavit). The company records their names in the shareholders’ register, and they jointly exercise shareholder rights (e.g. voting at general meetings, receiving dividends), unless the articles of association require them to appoint a common representative.

Example 2: Approval Clause in the Articles of Association
Shareholder Caio owns 500 shares in an S.p.A., whose articles of association include an approval clause governing post-mortem transfers.
Upon his death, his two heirs are called to the inheritance. They apply to the company for registration as shareholders, but the company withholds approval.
As a result, the heirs do not acquire the shares but are entitled to receive their fair value, as determined by law or by the valuation methods set out in the articles.

“Where the transfer of shares to heirs is subject to an approval clause, heirs acquire title only if approval is expressly granted; otherwise, they are entitled solely to the liquidation of the shares’ value” (Tribunal of Bari, 8 June 2016, No. 3147).

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5. Allocation of Shares Among Multiple Heirs

In the event of multiple heirs, shares may be registered in joint ownership (comunione ereditaria). In such cases, the shareholders’ register records the names of all heirs as undivided co-owners. Shareholder rights must be exercised jointly—typically through a common representative, but is not mandatory—if so required by the company’s articles or by prevailing practice.

The actual division of the shares may take place at a later stage, for example through a formal division of inheritance (divisione ereditaria).

Illustrative Table – Example of Share Allocation Among Heirs
Heir                       Number of Shares                 Percentage Ownership              Management Method
Mevio                                333                                               33.3%                                 Joint ownership
Caio                                   333                                               33.3%                                 Joint ownership
Tizio                                  334                                               33.4%                                 Joint ownership
Total                               1,000                                              100%                                  Common representative

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6. Taxation and Filing Requirements

The transfer of shares mortis causa is generally subject to inheritance and gift tax, governed by Legislative Decree No. 346/1990. However, exemptions apply where specific conditions are met.

• Exemption requirements (Art. 3(4-ter) D.Lgs. 346/1990):

a) The transfer must be in favor of the spouse or direct descendants of the deceased;

b) The transfer must result in the acquisition or integration of control over the company, defined as obtaining the majority of voting rights exercisable at the ordinary shareholders’ meeting;

c) The control must be maintained for at least five years from the date of transfer;

d) A formal declaration of intent to maintain control must be submitted with the inheritance declaration.

These rules were reaffirmed and expanded under the 2024 tax reform (D.Lgs. No. 139/2024), which expressly extended the exemption to include cases of “integration” of control—i.e., when the transfer enables the heir to augment an already existing control position.

The most significant change introduced by the reform is the extension of the inheritance and gift tax exemption to include cases in which the heir merely integrates an existing controlling interest in the company.

Furthermore:

• Financial transaction tax (so-called Tobin Tax) does not apply to transfers of shares upon death (Law No. 228/2012, Art. 1, para. 491).

Even after the 2024 tax reform implemented pursuant to the enabling Law No. 111/2023, the rules governing the mortis causa transfer of shares have remained largely unchanged in substance.

The legislative measure confirms the applicability of the inheritance tax relief to transfers of shareholdings in companies established in European Union or European Economic Area member states, as well as in countries that ensure adequate exchange of information, provided that the same conditions applicable to transfers of shares and equity interests in resident companies are met.

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7. Consequences for Corporate Governance and Shareholder Rights

Heirs who acquire shares mortis causa succeed to the full range of shareholder rights—both economic and administrative—in proportion to their respective ownership interests, unless otherwise limited by the company’s articles of association.

These rights include:

a)Voting rights at shareholders’ meetings;
b)The right to dividends;
c)The right of first refusal (if applicable);
d)Subscription rights in the event of capital increases.

However, where the shares are held in undivided co-ownership (as in the case of multiple heirs), such rights must be exercised jointly, usually through a common representative.

All financial entitlements and obligations, as well as managerial powers associated with the shares, pass to the heirs by operation of law.

The right to profits and the right of subscription accrue proportionally to the other shares. Voting rights—and, it is understood, other administrative rights associated with treasury shares—are suspended.
This suggests that while most rights pass to the heirs, some may be temporarily inactive or restricted if the shares are considered “own shares” (azioni proprie) held by the company pending their reallocation or disposal.

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8. Summary

a) In the absence of a will, shares in an S.p.A. pass to the legal heirs in accordance with the statutory rules of intestate succession.
b) The heirs become co-owners of the shares and exercise shareholder rights jointly, subject to any limitations in the articles (e.g., approval clauses, pre-emption rights, or temporary transfer bans).
c) In the case of multiple heirs, joint ownership generally requires the appointment of a common representative.
d) Where transfer restrictions are triggered and not fulfilled, heirs are entitled instead to the liquidation value of the shares.
e) Transfer procedures vary depending on whether the shares are registered, dematerialised, or bearer (now rare).
f) The legal framework governing S.p.A.s ensures greater freedom of transferability and administrative clarity than that applicable to partnerships or private limited companies (S.r.l.s), due to the autonomous and patrimonial nature of share ownership.