The much-publicised family feud following the death of billionaire businessman Sunjay Kapur brought to fore the succession rights of children of divorced parents. However, this represents just one category of kids facing complex inheritance questions. Adopted children, those born out of wedlock, and children from live-in relationships also navigate a maze of succession laws that vary by religion and legal status.
If parents leave behind a will, it is executed according to the law. However, if they pass away without a will (intestate), succession or personal laws come into effect. The Hindu Succession Act, 1956, applies to Hindus, Sikhs, Buddhists and Jains, while Christians, Parsis and Jews are governed by the Indian Succession Act, 1925. For Muslims, personal law comes into force.
Succession or religion-specific laws govern inheritance rights of biological children, but there is confusion regarding other categories. “While succession laws govern intestate succession, judicial precedents over the years have provided clarity regarding the rights of different categories of children, be it the adopted child or a child of live-in partner, in the parents’ property,” says Neha Pathak, Managing Partner, Trust & Estate Planning, Motilal Oswal Wealth Limited.
Here’s how children inherit depending on their parents’ marital status and religion.
Biological kids / kids of divorced parents
In both cases, the same laws apply as divorce only changes the marital status of parents, not the child-parent relationship. “They remain Class I heirs (Hindus), Quranic heirs (Muslims), and entitled lineal descendants (Christians and Parsis),” says Raj Lakhotia, Managing Partner, LABH & Associates.
HINDUS: According to the Hindu Succession Act, 1956, and the Hindu Succession (Amendment) Act, 2005, both sons and daughters have a right to the father’s ancestral property by birth. If parents die intestate, children being Class I heirs have a first right to their property. “Sons and daughters, including married daughters, have equal rights in both parents’ property. After 2005, daughters are also coparceners in ancestral property, inheriting equally with sons,” says Lakhotia.
In case of minors, they own the property, but cannot legally manage it. A legal guardian, or one appointed by the court, must file a petition in court to manage the property on behalf of minors until they become adults.
MUSLIMS: Sons receive twice the share of daughters, while grandchildren inherit only if their parent is not alive. “Only up to one-third of the estate can be bequeathed by will without the heirs’ consent,” says Lakhotia.
CHRISTIANS & PARSIS: Children inherit equally regardless of gender. In Christians, kids inherit two-thirds of the estate and spouse gets one-third. In Parsis, the spouse shares the estate equally with children.
Adopted kids
HINDUS: Adopted kids have the same inheritance rights as biological kids and are entitled to a share in their adoptive parents’ property if they pass away intestate. However, according to the Hindu Adoptions and Maintenance Act, 1956, the adopted child loses the right to his/her biological parents’ property or to the associated coparcenary property.
However, biological parents can voluntarily leave property or other assets to the adopted child through a valid testamentary document such as a will.
MUSLIMS: “Adopted (kafala) children do not inherit from the adoptive family unless willed up to one-third of the estate. Such children inherit from their biological parents,” says Lakhotia.
CHRISTIANS & PARSIS: As in the case of Hindus, both Christian and Parsi adopted kids have a right to their adoptive parents’ property, and not of their biological parents, unless specified otherwise in a will.
Kids of live-in couples
Live-in relationships have not been granted any legal status or acceptance under the Hindu Succession Act, Islamic law or the Christian personal law. However, according to the 2008 Supreme Court ruling, a child born to a couple in a live-in relationship would have the same right of inheritance as a legal heir. A subsequent Supreme Court ruling in 2015 declared that an unmarried couple that has been living together for a long time can be considered married.
HINDUS: The offspring of such a couple will have the right to his/her father’s self-acquired property under Section 16 of the Hindu Marriage Act, 1955. “Children are deemed legitimate and inherit from both parents as Class I heirs, but do not get coparcenary rights in the joint family property of the father’s lineage,” says Lakhotia.
MUSLIMS: Such children are considered illegitimate and can inherit only from the mother, not the father, unless the paternity is acknowledged, and up to one-third of the father’s property can be willed or gifted.
CHRISTIANS & PARSIS: In the case of Christians, courts allow inheritance from both parents if paternity is established, otherwise, full rights are only granted from the mother. In Parsis, children have automatic rights to the mother’s estate, and to the father’s estate, only if paternity is proven.
Stepchildren
“None of the religions has an automatic inheritance right from the stepparent unless the stepchild is legally adopted or named in a will by such a parent,” says Pathak. Hence, for Hindus, Christians and Parsis, stepchildren have no succession rights unless they are legally adopted or covered through a will.
“The Juvenile Justice Act permits the adoption of stepchildren, wherein individuals of any religious background may seek to adopt a stepchild after satisfying the eligibility criteria,” says Rajat Dutta, Founder & Initiator, Inheritance Needs Services.
Children born out of wedlock
HINDUS: “The Supreme Court, in Revanasiddappa and Another vs. Mallikarjun and Others case, stated that children born from void or voidable marriages are considered legitimate under Section 16 of the Hindu Marriage Act, 1955, and are entitled to inherit property from their parents,” says Dutta.
The Act, under Section 16 (3) states that ‘such children are only entitled to the property of their parents and not of any other relation’. Hence, such a child would only have the right to his father’s selfacquired property, not his ancestral property. However, the above-mentioned Supreme Court ruling in 2011 states that children born out of wedlock have a right to their father’s self-acquired property as well as ancestral property.
MUSLIMS: Such a child inherits only from the mother and her relatives, not from the father (unless paternity is acknowledged). “Inheritance through a will or gift from father is possible up to one-third of the estate,” says Lakhotia.
CHRISTIANS & PARSIS: “Christian kids have full rights in the mother’s property and, if paternity is established, also in the father’s estate as per the recent court trends,” says Lakhotia. Among Parsis, legitimacy was traditionally strictly enforced. However, now, if paternity is established, such kids may have rights in the father’s estate and automatic rights in the mother’s estate.
If parents leave behind a will, it is executed according to the law. However, if they pass away without a will (intestate), succession or personal laws come into effect. The Hindu Succession Act, 1956, applies to Hindus, Sikhs, Buddhists and Jains, while Christians, Parsis and Jews are governed by the Indian Succession Act, 1925. For Muslims, personal law comes into force.
Succession or religion-specific laws govern inheritance rights of biological children, but there is confusion regarding other categories. “While succession laws govern intestate succession, judicial precedents over the years have provided clarity regarding the rights of different categories of children, be it the adopted child or a child of live-in partner, in the parents’ property,” says Neha Pathak, Managing Partner, Trust & Estate Planning, Motilal Oswal Wealth Limited.
Here’s how children inherit depending on their parents’ marital status and religion.
Biological kids / kids of divorced parents
In both cases, the same laws apply as divorce only changes the marital status of parents, not the child-parent relationship. “They remain Class I heirs (Hindus), Quranic heirs (Muslims), and entitled lineal descendants (Christians and Parsis),” says Raj Lakhotia, Managing Partner, LABH & Associates.
HINDUS: According to the Hindu Succession Act, 1956, and the Hindu Succession (Amendment) Act, 2005, both sons and daughters have a right to the father’s ancestral property by birth. If parents die intestate, children being Class I heirs have a first right to their property. “Sons and daughters, including married daughters, have equal rights in both parents’ property. After 2005, daughters are also coparceners in ancestral property, inheriting equally with sons,” says Lakhotia.
In case of minors, they own the property, but cannot legally manage it. A legal guardian, or one appointed by the court, must file a petition in court to manage the property on behalf of minors until they become adults.
MUSLIMS: Sons receive twice the share of daughters, while grandchildren inherit only if their parent is not alive. “Only up to one-third of the estate can be bequeathed by will without the heirs’ consent,” says Lakhotia.
CHRISTIANS & PARSIS: Children inherit equally regardless of gender. In Christians, kids inherit two-thirds of the estate and spouse gets one-third. In Parsis, the spouse shares the estate equally with children.
Adopted kids
HINDUS: Adopted kids have the same inheritance rights as biological kids and are entitled to a share in their adoptive parents’ property if they pass away intestate. However, according to the Hindu Adoptions and Maintenance Act, 1956, the adopted child loses the right to his/her biological parents’ property or to the associated coparcenary property.
However, biological parents can voluntarily leave property or other assets to the adopted child through a valid testamentary document such as a will.
MUSLIMS: “Adopted (kafala) children do not inherit from the adoptive family unless willed up to one-third of the estate. Such children inherit from their biological parents,” says Lakhotia.
CHRISTIANS & PARSIS: As in the case of Hindus, both Christian and Parsi adopted kids have a right to their adoptive parents’ property, and not of their biological parents, unless specified otherwise in a will.
Kids of live-in couples
Live-in relationships have not been granted any legal status or acceptance under the Hindu Succession Act, Islamic law or the Christian personal law. However, according to the 2008 Supreme Court ruling, a child born to a couple in a live-in relationship would have the same right of inheritance as a legal heir. A subsequent Supreme Court ruling in 2015 declared that an unmarried couple that has been living together for a long time can be considered married.
HINDUS: The offspring of such a couple will have the right to his/her father’s self-acquired property under Section 16 of the Hindu Marriage Act, 1955. “Children are deemed legitimate and inherit from both parents as Class I heirs, but do not get coparcenary rights in the joint family property of the father’s lineage,” says Lakhotia.
MUSLIMS: Such children are considered illegitimate and can inherit only from the mother, not the father, unless the paternity is acknowledged, and up to one-third of the father’s property can be willed or gifted.
CHRISTIANS & PARSIS: In the case of Christians, courts allow inheritance from both parents if paternity is established, otherwise, full rights are only granted from the mother. In Parsis, children have automatic rights to the mother’s estate, and to the father’s estate, only if paternity is proven.
Stepchildren
“None of the religions has an automatic inheritance right from the stepparent unless the stepchild is legally adopted or named in a will by such a parent,” says Pathak. Hence, for Hindus, Christians and Parsis, stepchildren have no succession rights unless they are legally adopted or covered through a will.
“The Juvenile Justice Act permits the adoption of stepchildren, wherein individuals of any religious background may seek to adopt a stepchild after satisfying the eligibility criteria,” says Rajat Dutta, Founder & Initiator, Inheritance Needs Services.
Children born out of wedlock
HINDUS: “The Supreme Court, in Revanasiddappa and Another vs. Mallikarjun and Others case, stated that children born from void or voidable marriages are considered legitimate under Section 16 of the Hindu Marriage Act, 1955, and are entitled to inherit property from their parents,” says Dutta.
The Act, under Section 16 (3) states that ‘such children are only entitled to the property of their parents and not of any other relation’. Hence, such a child would only have the right to his father’s selfacquired property, not his ancestral property. However, the above-mentioned Supreme Court ruling in 2011 states that children born out of wedlock have a right to their father’s self-acquired property as well as ancestral property.
MUSLIMS: Such a child inherits only from the mother and her relatives, not from the father (unless paternity is acknowledged). “Inheritance through a will or gift from father is possible up to one-third of the estate,” says Lakhotia.
CHRISTIANS & PARSIS: “Christian kids have full rights in the mother’s property and, if paternity is established, also in the father’s estate as per the recent court trends,” says Lakhotia. Among Parsis, legitimacy was traditionally strictly enforced. However, now, if paternity is established, such kids may have rights in the father’s estate and automatic rights in the mother’s estate.
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