MPW 2023: Here’s what inheritance laws say about women's assets when they die without a will

Changes in society often precede those in law by a good few years, if not decades. Women, particularly, continue to feel the full weight of centuries-old cultural mores that inform these laws. This appears to be most true in laws governing inheritance.

Consider this landmark case. In 1955, Narayani Devi married Dindayal Sharma and lived in Sharma’s house with his parents. Sharma passed away within three months of the marriage, and Devi was forced out of her matrimonial home immediately after.

She returned to her parents’ home, got educated, and found a job. She started bank accounts and had a sizeable sum in her provident fund account. In 1996, she passed away intestate, i.e. without a will, leaving behind the assets she had acquired in her lifetime.

Ramkishori, Devi’s mother, applied for a succession certificate. So, too, did Narayani’s in-laws, seeking not just succession certificates but also ownership rights over her acquired properties. A dispute arose, stemming from the fact that Devi’s in-laws never made any financial contribution during her lifetime, nor did she ever visit their house. After 13 years, in 2009, the Supreme Court transferred Devi’s properties to her in-laws.

This is because the Hindu Succession Act (HSA), 1956, stipulates that if a woman’s property is self-acquired, the husband is predeceased, and there are no children, the property will go to the husband’s heirs and not to her parents, siblings, or other relatives.

This is just an example of the arcane laws that govern inheritance, which have been amended piecemeal over time but are still a minefield for women.

The Inheritance Conundrum

In India, when a woman dies intestate, the distribution of her property is handled per the personal laws applicable to her religious community.

One of the most significant reforms addressing gender disparities in inheritance laws came in 2005, when the HSA was amended to ensure equality between sons and daughters in terms of inheritance rights. The HSA applies to Hindus, Buddhists, Sikhs, and Jains.

But that amendment aside, there are still provisions that need to be updated. For instance, if a woman dies intestate, the property she acquired in her lifetime is passed over to her sons and daughters, or their children if they have died as well. If she doesn’t have children, all her assets are transferred to her husband. Full ownership is transferred to the woman’s mother-in-law if her husband has also passed away. A married woman’s parents become her legal heirs only if all heirs on the husband’s side are no more.

Despite institutional efforts to reduce gender discrimination in inheritance, societal biases frequently impede their realisation. “Women’s legal [inheritors] should also include their own parents in this era,” says Vishnu Chundi, Founder and CEO of AasaanWill.

Chundi explains that in cases where a Hindu woman inherits property from a parent, that property will be transferred to her children if she dies intestate. If there are no children, it is transferred to the other heirs of her father or mother, depending on who she inherited the property from, and will not go to her husband’s heirs. “As per Section 15 (2)(a), if the property is inherited from her parents, it devolves to the father’s heirs in the absence of any kids. As per Section 15 (2)(b), if the property is inherited from her husband or father-in-law, it devolves to the husband’s heirs in the absence of kids,” says Chundi.

Now about those centuries-old mores, consider the inheritance rights of a woman if her husband dies and she marries someone else. “A widow gets an equal share of her husband’s property and his other Class I heirs—his mother and children. In case the widow remarries, she is to give up her claim on her ex-husband’s properties,” says Chundi. Under what law, you ask? The Hindu Widow Remarriage Act of 1856.

Other Laws

Under the Indian Succession Act (ISA), 1925, which applies to Christians, if a woman passes away without a will, her husband and children inherit the property. If any children do not survive, the husband will receive the entire share.

In Islamic law, the inheritance rights of women are clearly specified. Daughters have the right to inherit, but their share is generally half that of their brothers, predicated on the view that men are the family’s primary breadwinners. For instance, in a family with one son, one daughter, and 12 assets that need to be devolved, the son will get eight assets and the daughter four.

Bhavya Sriram, Partner at JSA Advocates & Solicitors, says, “In general, there are four main sources of Muslim law: the Holy Quran; the Sunna, which is the practice of the Prophet; Ijma, the consensus of Islamic scholars; and Qiyas, an analogical deduction for applying the jurisprudential ruling of an issue to another analogous issue on which there is no ruling in religious texts. The Muslim law of succession for property is derived from the four sources mentioned along with Hadith (the sayings and actions of the Prophet Muhammad).”

But these laws apply to legal partners. A 2008 Supreme Court verdict shows what happens in long-term relationships that are not recognised by law.

A person called Sheetaldeen died in 1993, leaving behind his first wife, a second wife with whom he lived for 20–25 years, and her four children. The first wife had no children of her own. The apex court first considered the question of whether the legal widow of the deceased was the first or second wife. In this case, the Supreme Court considered the second wife a live-in partner because a second marriage without divorce in the first is considered a live-in relationship. The court, though, recognised the right of a live-in partner to claim a succession certificate vis-à-vis the first wife.

However, the court held that though the second wife was a long-time partner and nominee of the deceased, she was not a legal heir since her marriage was not legally valid. And since she wasn’t a legal heir, she was not entitled to inherit the deceased’s property. However, the deceased’s children were recognised as his undisputed legal heirs and were given inheritance rights.

Where There’s A Will

Over the years, Indian laws have striven to remove gender-based discrimination in inheritance. Despite this, there is clearly a long way to go. Patriarchal biases and interpretations of the law still result in many women being deprived of their fair share.

To ensure that the right person receives a share of what was owned by a woman on her death, it is best that she prepares and registers a will declaring all that is to be transferred to her heirs. A will is not a tool for wealth creation, but it safeguards the interests of a working woman who has created wealth and acquired assets during her lifetime to secure her loved ones in the future.

Planning a will is an exercise in control and lets women distribute their assets as per their choice. Sriram says, “Having a properly drafted will can prevent family disputes over inheritance. Estate planning can be used as a tool to both manage one’s assets during their lifetime and to set aside assets for a specific purpose, such as meeting the education expenses of one’s children, the maintenance expenses of parents, and the allocation of assets to persons other than legal heirs.”

A person of sound mind and having attained majority can write their will. While there is no right age to start, experts recommend that a woman, working or not, should start as early as possible.

Of course, since inheritance is a matter of personal law, there are discrepancies. Nidhi Singh, Partner at IndiaLaw LLP, says, “Will planning may help resolve problems for only Hindu and Christian women in India and not Muslim women, as per the prevailing personal laws currently in force. The reason for this is that while the personal laws for Hindus and Christians in India permit a person to prepare a will for her entire property or assets, the same cannot be done in the case of Muslims in India,” she says. Per Muslim personal law, a will is governed under the relevant Sharia law as applicable to the Shias and Sunnis. “Under Sharia law, self-acquired and ancestral properties are considered equal and follow [similar] rules. If she makes a will, she cannot give away more than one-third of her property, and if her husband is the only heir, she can give two-thirds of the property by will,” says Chundi of AasaanWill.

Besides, one must keep in mind that a will can be challenged under the provisions of the ISA. For instance, as per Section 63 of the ISA, a will not duly signed by the testator and two or either of the witnesses in the presence of each other can be contested. Similarly, it can be challenged if there is fraud, coercion, or undue influence, or if the person making the will is considered to have an unsound mind, or if there are illegal conditions set out in the will, among other reasons.

Clearly, there is a need to update some laws to ensure greater equality. Singh of IndiaLaw says all such efforts must begin with providing women greater awareness and legal education, in terms of their succession rights. “This should be done without pre-conditions of any particular region, religion, caste, creed, etc. In this regard, workshops must be carried out to make women aware of their rights. Finally, the government should carry out a survey as to how many women in India are actually aware of their succession rights.” 

@imNavneetDubey