English versione of the summary of the article published in the Wealth Planning magazine of “Il Sole 24 Ore” and published on September 1, 2025, by Avv. Leonardo Arienti.
Leonardo Arienti, Sole 24 Ore – Wealth Planning, no. 4/2025, p. 56 ff.
Abstract:
In examining the civil law aspects connected with the transfer into trust of the usufruct right over corporate shareholdings, the potential of this instrument within estate and succession planning clearly emerges. After a preliminary review of the civil law regime governing the usufruct of corporate shares, the paper analyzes the methods of transferring the right into trust (assignment or creation) and the resulting implications for the duration of the right. It then explores in greater depth the exercise of administrative rights vested in the usufructuary. In the final part, the contribution focuses on the usufructuary’s property rights, with particular regard to the entitlement to profits, both in the form of dividends and through the distribution of reserves.
1. Trust and the Right of Usufruct: Introductory Profiles
The trust is confirmed as a particularly effective tool in estate and succession planning, especially when applied to corporate shareholdings. The ability to separate full ownership into usufruct and bare ownership makes it possible to regulate corporate governance dynamics and the allocation of profits in a detailed way, facilitating the generational transfer of businesses.
The transfer of the usufruct right into a trust, whether through creation under Article 978 of the Italian Civil Code or assignment under Article 980, offers several advantages: asset segregation, professional and neutral management, and flexibility in regulating profits. At the same time, the operational complexity and the potential for conflict between usufructuary and bare owner require a careful assessment of the legal effects and practical implications of the transfer.
2. Usufruct of Corporate Shares: S.p.A., S.r.l. and Partnerships
The usufruct of shares in a joint-stock company (S.p.A.) is governed by Article 2352 of the Civil Code, while for quotas in a limited liability company (S.r.l.) the applicable rule is Article 2471-bis, which refers by analogy to the regime provided for shares. In partnerships, although no specific provision exists, usufruct is admissible with the unanimous consent of the partners and subject to the rules of the relevant corporate type (particularly Articles 2284 ff. c.c.).
The content of the usufruct right can be contractually tailored through shareholders’ agreements or corporate by-laws. The trust enhances this possibility, allowing for a “double customization”: both through corporate instruments and through the trust deed, which may detail the limits, modalities, and purposes of the usufruct right.
3. Modes of Transfer into Trust: Creation and Assignment
The transfer of usufruct into a trust can occur in two ways:
- Creation under Article 978 c.c.: the settlor, as full owner, creates the usufruct in favor of the trustee;
- Assignment under Article 980 c.c.: the usufructuary transfers to the trustee an existing usufruct right.
The choice depends on family and succession planning needs as well as on the type of corporate shareholding. In practice, assignment is more common, since it is tied to the life of the original usufructuary.
4. Duration of the Usufruct Right in Trust
The duration of usufruct varies depending on the method of transfer:
- In the case of assignment under Article 980 c.c., the usufruct continues until the death of the original usufructuary-transferor.
- In the case of creation under Article 978 c.c., duration follows the rules of Article 979: lifetime if the usufructuary is a natural person, or a maximum of thirty years if a legal person.
The issue arises when the usufruct is registered in the name of the trustee. Since duration cannot be linked to the trustee’s life, doctrine and case law offer two approaches:
- assimilation to the regime for legal entities, with a thirty-year limit;
- connection to the life of a designated beneficiary, by analogy with successive usufructs under Article 796.
The matter remains open, and special caution is required when drafting the trust deed.
5. The Trustee as Usufructuary: Administrative Rights
The voting right, under Article 2352 c.c., belongs to the usufructuary unless otherwise agreed. Corporate by-laws or shareholders’ agreements may assign it to the bare owner or regulate it with tailored solutions (veto powers, voting guidelines, rotation, allocation by subject-matter).
Other administrative rights, distinct from voting, may be exercised by either the usufructuary or the bare owner: rights to information, to review financial statements, to report to auditors, or to challenge resolutions. Some rights are instead tied to voting (such as participation in meetings, calling an assembly, adjournments, waiver of notice terms). The potential for conflict makes clear contractual regulation essential, often supplemented in the trust deed.
6. The Trustee as Usufructuary: Property Rights
From a financial perspective, the usufructuary is entitled to current-year dividends, classified as civil fruits (Articles 820 and 981 c.c.). Distribution of dividends is resolved by the general meeting in corporations and by approval of the annual report in partnerships.
The treatment of retained earnings is more controversial:
- according to one view, retained profits lose their nature as fruits and become capital; if later distributed, Article 1000 applies;
- according to another view, any benefit linked to the shareholding is a civil fruit, even if derived from reserves or capital distributions.
Recent Supreme Court case law (2024) has endorsed the second approach, recognizing the usufructuary’s right to all benefits generated by the shareholding, including distributions from reserves and liquidation. Legal scholars also highlight the systematic inapplicability of Article 1000 to corporate shares, which cannot be assimilated to debt instruments.
7. Conclusions
Transferring the usufruct of corporate shares into a trust is a sophisticated arrangement that demands careful planning. On the one hand, it ensures asset segregation, flexibility, and stability in generational transfers; on the other, it raises delicate issues: duration of the right, relations between usufructuary and bare owner, and the qualification of distributions from reserves.
The framework established by case law, especially from the Supreme Court, confirms the importance of a proper civil law qualification of usufruct in trust and the necessity of regulating relations through both the trust deed and the corporate by-laws. Only with such detailed structuring can conflicts be prevented and estate and succession planning objectives effectively achieved.
