According to the Indian Succession Act, 1956, and the Indian Succession (Amendment) Act, 2005, children, whether boys or girls, have a right to the father’s ancestral property by birth.
In the second wave of Covid, several people lost multiple family members. In some cases, minor children lost both their parents, mostly in their 40s and 50s. Since most people in this age group do not anticipate an untimely death, they typically do not prepare a will. So what happens to their inheritance? Alternatively, what if the parents are divorced or the child is adopted? Here are the inheritance rights of such kids:
1. Minor children
According to the Indian Succession Act, 1956, and the Indian Succession (Amendment) Act, 2005, children, whether boys or girls, have a right to the father’s ancestral property by birth. In case of the parents’ self-acquired property, they can give it to anyone they want through a written will. However, if they die intestate, or without a will, the children being Class I heirs have a first right to their property. If, on the other hand, the children are minors, they do own the property, but cannot legally manage it. So a legal guardian, or one appointed by the court, has to file a petition in the court to manage the property on behalf of the minor till the child becomes an adult.
2. Kids of divorced parents
If the parents are divorced, the children still have a legal right to the parents’ property. The normal succession laws as per one’s religion apply in such cases. So the child has a right over the ancestral property, and in case of a self-acquired property, if the father dies intestate, he has the first right over it since he is a Class I heir. Of course, if the property is self-acquired, the father can give it to anyone he wants during his lifetime via a written ill.
3. Adopted kids
The adopted children have the same inheritance rights as the biological kids and are entitled to a share in their adoptive parents’ property. So if the adoptive parent dies intestate, the adopted child can stake the same claim to property as the biological child. 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 or in the coparcenary property. But if the biological parents want to leave property to the child, they can do so.
4. 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 Supreme Court ruling of 2008, a child born to a couple in a live-in relationship would have the same right of inheritance as a legal heir. As per another Supreme Court ruling in 2015, an unmarried couple that has been living together for a long time can be considered as married. Hence, a child born to such a couple will have the right to his father’s self-acquired property under Section 16 of the Hindu Marriage Act, 1955.
5. Illegitimate children
The inheritance rights of illegitimate children are governed by Section 16 (3) of the Hindu Marriage Act, 1955, which states that ‘such children are only entitled to the property of their parents and not of any other relation’. This implies that an illegitimate child would only have the right to his father’s self-acquired property, not his ancestral property. However, according to a Supreme Court ruling in 2011, children born out of wedlock have the right to stake a claim to their father’s self-acquired property as well as ancestral property. Despite this ruling, there has been confusion regarding the right of illegitimate children to ancestral property.
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