October 16, 2021
Your rightful wealth
To: either/view subscribers
KNOW YOUR RIGHTS – EDITION 11
Right to Inheritance
Good morning. Losing a loved one isn’t an easy experience to get through. Add to it the legalities involved, and there’s enough stress to go around. But one thing is certain – knowing where your rights lie in such circumstances can give you a sharper perspective on how to address any problems that might arise.
We come across countless domestic disputes on inheritance, from disagreement over property share to offloading of responsibility (nobody wants to pay off accumulated debt). The legal procedures that help resolve these problems are painstakingly long, so to moderate this process the government of India has in place the Law of Inheritance. How does this law work?
When an individual dies, their property, rights, titles, debts, and obligations are passed on to their legal heir in one of two ways:
- Through a will that the deceased person may have prepared beforehand – Those mentioned in the will receive their assigned share.
- Through the laws of succession – In an event where a person dies Intestate i.e without preparing a will, the property is transferred to the legal heirs by applicable laws of intestate succession.
When a will is in place, complications can be avoided and the distribution of the inheritances is done in accordance with the will. But for inheritance through succession, there are certain rules that decide what and how much of the person’s possessions you inherit.
In accordance with the secular spread of our country, there are different legal heirs listed by the Hindu Succession Act (2005) which is also applicable to Sikhs, Jains, and Buddhists, the Muslim Personal Law (Shariat) Application Act (1937), and distinct sections of the Indian Succession Act (1925) which apply to Christians and Parsis. Under the Special marriage Act (1954), the laws of succession also apply to those in interfaith marriages.
Based on your relation with the deceased, your inheritance rights vary.
- Rights of Children – Both a son and daughter (married or unmarried) have equal rights of inheritance of their father’s or grandfather’s property. Gender does not determine your right to inherit ancestral property. If a father has a separate or self-acquired property, both son and daughter are considered as legal heirs and can inherit it through succession. Illegitimate children are not eligible for inheritance whereas a child conceived but not yet born is considered a legal heir under the condition that the child is born alive.
- Rights of Grandchildren – Grandsons and granddaughters, along with the father, get an equal share of ancestral property. In the case of separate or self-acquired property, the grandson gets inheritance rights only if his father has died before his grandfather.
- Rights of Spouse – Unlike children, wives do not have a right to their husband’s ancestral property. However, a wife is a legal heir to a separate or self-acquired property in her husband’s name. In the event of the wife’s death, there are inheritance laws that decide who can inherit the woman’s property. In Hindu Law, the first preference for inheritance is given to her son and/or daughter, children of a predeceased son or daughter, and the husband. Muslim Laws categorise the inheritors as sharer and residuary with the former getting first preference. For other religious communities, inheritance is governed by the Indian Succession Act (1925).
- Rights of Adopted Child – If a child has acquired a property in their name before adoption, they have complete rights over it for their entire lifetime. However, once the child has been adopted, the property that is in the family will be inherited, in preference, by the biological family. The adopted child will have no right of inheritance over such property.
- Children born in a live-in relationship – Children born in a live-in relationship are recognised as legal heirs and have equal rights in inheriting the property as per the relevant law.
The inheritance laws in India are highly specific in that there are different classes of heirs which again are individually drafted by each religious law of inheritance and determine one’s position in the long list of inheritors along with the share one is eligible to receive.
It’s important to remember that being listed as an heir does not complete the inheritance process for you. You also need to register for a mutation (transfer of ownership title) so that the property is then listed in your name. Once you’re a legal heir of a property, you are free to reside in it, lend it, or sell it.