Inheritance and legal estate rights of five categories of children - ​Succession in case of kids (2023)

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Riju Mehta

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17 Nov 2021, 08:52 PM IST

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(Video) Inheritance Rights of a Surviving Spouse and Children of a Deceased Parent

​Succession in case of kids

In and post the brutal second wave of Covid-19, several people lost multiple family members. In some cases, minor children lost both parents at an untimely age. Since most of the deceased would not have anticipated this, chances are high that they would not have prepared a will. So what happens to their inheritance and the children left behind? Alternatively, what if the parents are divorced or the child is adopted? Here are the inheritance rights of such kids.

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Minor children

According to the Indian Succession Act, 1956, and the Indian Succession (Amendment) Act, 2005, children- boys or girls, have a right to the father’s ancestral property by birth. The parents’ self-acquired property can be given to anyone they want through a written will. However, if they die intestate, I.e. 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. In this case, a legal guardian, or one appointed by the court, has to file a petition in court to manage the property on behalf of the minor child till such time that the child becomes an adult.

Also read: How to organise your money in a way to make access easy even without your physical presence

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​Children of divorcees

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If the parents are divorced, the children still have a legal right to their 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.

Also read: Who gets the child’s custody in a divorce?

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​Adopted children

Adopted kids 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 passes away 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/her own biological parents or in the associated coparcenary property. But if the biological parents want to voluntarily leave such property or a share in it to the child, they can do so.

Also read: How to manage money, asset transfers after untimely death of a dear one

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​Children 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. A subsequent Supreme Court ruling of 2015 declared that an unmarried couple that has been living together for a long time can be considered married. Hence, 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.

Also read: 8 point plan to pass on your assets to spouse, children, heirs

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(Video) Who Gets What? Inheritance Involving Illegitimate Children Explained

​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, uncertainty and confusion still linger around the status of rights of illegitimate children in ancestral property.

Also read: When is a daughter legal heir of her parent's assets and when she is not?

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