Inheritance rights of adopted, illegitimate, stepchildren, separated spouse, live-in partner

More than ever, India is witnessing an increase in divorce cases, multiple marriages, live-in relationships, having stepchildren, children from previous marriage, adopted children, children born out of wedlock. In this article we explain to you the inheritance rights of the partner and the child in context of the succession laws and the court judgements for Hindus in India.

Rights of children from divorced parents:

If you have children from your divorced spouse, then such children (your biological children) would be your legal heirs as specified under the Class I legal heirs of the Hindu Succession Act, 1956. Even if you do not have the custody of your child and do not have any ties with your children, they would still be entitled to inherit your properties unless you prepare a succession plan and mention otherwise. The children from divorced spouse will have an equal right over the properties in addition to the other legal heirs even though you may have settled off the matter with your divorced partner in terms of alimony and maintenance. Your biological children will have a right to inherit from your assets and if you wish to distribute your assets in a different manner due to remarriage, change in relations, then you need to prepare a succession plan accordingly.

Rights of stepchildren:

The Hindu Succession Act, 1956 does not recognize stepchildren (children of your spouse from his/her previous marriage), as natural legal heirs unless you lawfully adopt them. In order to bequeath a share of your property to them, you need to include them under your succession plan. Your step son or step daughter will not have any right in your property because under the Hindu Succession Act 1956, a step son or step daughter does not fall within the purview of a “son” or “daughter” and therefore, has no legal right to your property, unless you specifically bequeath a share to him or her under your Will.

Rights of adopted children:

The legality of relationship between an adoptive parent and the adoptive child can be traced back to Hindu Adoption and Maintenance Act, 1956. Section 12 of Hindu Adoption and Maintenance Act, 1956 clearly states that “An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family”. This section emphasis that the son or daughter under Hindu Succession Act, 1956, includes both natural son/daughter and adoptive son/daughter. Therefore, if a child is legally adopted, he/she would be considered as a Class 1 legal heir/first category under Hindu Succession Act, 1956 and would be entitled to a share in their adoptive parent’s property. However, according to the Hindu Adoptions and Maintenance Act, 1956, after adoption, the child loses the right to stake a claim in the property of his biological parents unless the biological parents include the children as a beneficiary under their succession plan.

Rights of children born out of wedlock

The inheritance rights of illegitimate children have been mentioned under Section 16 (3) of the Hindu Marriage Act, 1955, according to which such children are only entitled to the property of their parents and not of any other relation. Hence, an illegitimate child will have the right to inherit his father’s self-acquired property and not his ancestral property. However, in a very recent judgment by Supreme Court, Revanasiddappa v. Mallikarjun, it was held that ‘Child born in illegitimate relationship/void marriage is innocent and is entitled to all rights which are given to other children born in valid marriage. Therefore, such children will have a right to whatever becomes the property of their parents whether self-acquired or ancestral.’ Despite this ruling, there has been confusion regarding the right of illegitimate children to ancestral property.

Rights of live-in-partner

Live-in relationships have not been granted any legal status under the Hindu marriage and succession laws. Hence if you desire to bequeath your estate to your live-in partner without any judicial interference and legal hassles then you need to make provision for the same under your succession plan. However, a child born to a couple in a live-in relationship would have the right of inherit from the parents as a legal heir as per the Class I legal heirs of the Hindu Succession Act, 1956. In some instances where a question had come up before the courts to prove whether the couple was merely living together or was legally married the courts have cited that “Where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.” This has been reaffirmed in Tulsa & Ors vs Durghatiya & Ors on 15 January, 2008 and Badri Prasad vs Dy. Director of Consolidation on 1 August, 1978 where the couple had been living together for more than thirty and fifty years respectively.

Rights of separated partner:

If you were living separately from your spouse without getting a divorce, then you continue to be spouse for all legal purposes including inheritance. In the case of Thankam vs Rajan, the Kerala High Court has pronounced which has been accepted by other High Courts that “The wife continues to be the wife till the marital tie is broken by a decree under the proceedings of the Hindu Marriage Act. Divorce has to be obtained in accordance with the procedure under the Hindu Marriage Act”. This means that your separated partner is your partner legally and is entitled to the appropriate share of your estate whether you have remarried or not unless you state otherwise in your written Will. However, if you are judicially separated from your spouse under a decree of court by petition filed under Section 10 of the of the Hindu Marriage Act, 1955 the court will pass order with respect to extinguishment of succession rights. Inheritance rights will be determined according to the court decree. Judicial separation is temporary suspension of marriage where there is a possibility of reconciliation.

Rights of second wife:

The property rights of second wife depends upon the legitimacy of the marriage which is determined by the Hindu Marriage Act, 1955 that prohibits polygamy and Section 5 of the Act states, “at the time of marriage, none of the parties should have a living spouse”. Thus, if this condition is not met, the second wife does not have the right to claim any share over her husband’s property unless the husband includes her as a beneficiary under his Will/succession plan. If the husband remarried after the death of his first wife or after getting divorced from his wife, it would be a legal wedding and the second wife will have the rights in the property. However, the children from the second marriage (though void) would still be entitled to inherit the properties of both parents.

Planning for your succession to avoid disputes and smooth transmission of assets upon demise:

Often people fail to revise their succession plan upon divorce, remarriage, having children from another partner etc. which may lead to distribution of assets against your wishes. The legal system allows you to distribute your assets as per your wishes under a Will, failing which the laws of succession as described under the Hindu Succession Act, 1956 will take precedence. One can prepare a Will to distribute the assets as per their wishes which could include your partner from marriage or outside the marriage or your children from current wedlock or from previous partner. While disinheriting any of the heirs one shall keep in mind their rights to maintenance. If you are disinheriting any of your legal heir, it would be prudent to state the reasons for the same. It is pertinent to note that a Will becomes a public document after your demise and is subject to challenges by legal heirs. In order to reduce the chances of litigation, one should register a Will and could also video-record their statements which will serve as additional evidence in the court, if the Will is ever challenged. Forming a private family trust is another efficient tool for creating a succession plan which offers privacy protection and cannot be challenged by other legal heirs. However, if you are including an unmarried partner or a child who is not a natural legal heir, then passing on assets through a private trust could trigger taxes under the Section 56 of the Income Tax Act, 1961. Making gifts with retained life interest can also be considered to avoid challenges under a Will. One should take appropriate advice, evaluate your relationships, discuss all the factors openly with your legal advisor to arrive at a proper solution.

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