Published on
22 Mar 2023
3 min read

Inheritance by Children of Divorced Parents

Monika Taparia
Sep 11, 2023

On the one hand, marriage is an amalgamation of responsibilities, and on the other hand, divorce is the separation of responsibilities, especially when it comes to the children. A lot of things go on while two people get separated and finally divorced. It involves maintenance, alimony, custody of children, etc. In 95% of the cases, the custody of the children remains with the mother, especially, when they are minors.

Well, it is very rare that people plan their finances during the time when they file for their divorce, which is an equally significant event that changes your life just like your marriage, having a child, when you buy your first home, the higher education of your children, etc. We all consider financial management during the aforementioned events, but rarely when it comes to divorce. Because divorce not only changes one’s life but also the individual responsibilities of both people increase by a level.

Through this blog, we want to address a very crucial aspect of succession planning. Life is uncertain, and in present times, we never know what will happen tomorrow? The life of divorced parents is not easy, and inheritance is a lesser-known topic in such a situation. So the question is, what happens to the property or wealth of divorced parents? Are there any factors affecting it? Who inherits the property if the child’s custody is with one of the parents?

There could be three situations:

  1. A person dies during the process of divorce.
  2. A person dies after divorce and doesn’t remarry.
  3. A person dies after divorce and remarriage.

In India, if you do not write a Will, the inheritance is governed as per the religion, i.e., according to one’s personal law. In this blog, we have covered the Hindu Law of Succession. Now let us understand how the inheritance would work in these situations:

A person dies during the process of divorce

If a person dies during the divorce, that implies that the divorce was not granted by the court. That means that not only the children but even the spouse would also be legal heirs.

We have prepared a succession planning checklist for women during their divorce. Readers who are willing to know more can check it out. Soon we will also come up with such a checklist for men too.

A person dies after divorce and doesn’t remarry

Once the divorce is finalised and granted by the court, then only the children of such divorced parents would have the right to claim their share in the property of their deceased parent, along with the other legal heirs but not the ex-spouse. 

A person dies after divorce and remarriage

If any divorced person remarries and also has children from their second marriage, then in such a situation, the children from the first and second marriages would be entitled to claim their inheritance rights in the property of their deceased parent along with the other legal heirs. 

Settled legal positions by the courts 

In the case of Srimathi Narayanan vs Vijaya Parthasarathy (Deceased), the Madras High Court held that In fact, even if the parents divorce, the children have a legal right to their property. In such cases, the normal succession laws of one's religion apply. As a result, the child has a right to the ancestral property, and if the father dies without a Will, children have the first right to it because they are Class I heirs. Only the relationship between man and woman ends after divorce, but the relationship between father/mother and son/daughter remains unchanged. The same rule will be applicable if the mother dies without a Will.

It should be noted that children born out of their parents' lawful wedlock are legitimate children with the right to inherit their parents' property. As a result, under Hindu law prior to 1955, illegitimate children could not claim any share of their parents' property. It was truly unfortunate that they were not only denied their right to a share of their parents' property, but also had to live with the social stigma of being bastards for the rest of their lives. Section 16 of the Hindu Marriage Act of 1955 sought to change this position. 

In another case, the record revealed that the petitioners' parents' marriage had been dissolved, and for reasons best known to him, the petitioners' father had nominated his brother to receive terminal benefits during his lifetime. According to the settled position of the law, the nominee is only an authorised person or trustee to receive the amount or manage the property. If the heirs of the deceased have a claim to the beneficial interest in the property, the same should devolve only upon the legal heirs of the deceased, in accordance with the law of succession governing them.

Therefore, the legal position is well established that children from the first marriage remain legal heirs even after parents divorce and remarry. The above situations are not exhaustive, but are sufficient to give the readers a basic idea.

Writing a Will is one of the simplest ways to avoid all of this hassle.

AasaanWill helps you create a Will in just 15 minutes at a fraction of a lawyer's cost from the comfort of your home. You can also book an appointment for legal consultation or WhatsApp us at +91 8764447848.