India - Wedding (Succession) Planning: Analysing Impact Of Marriage On Inheritance Rights Of Hindus.

Legal News & Analysis - Asia Pacific - India - Regulatory & Compliance

11 December, 2019

 

When one is about to get married, there are myriad thoughts crossing one’s mind all at once – from meticulous planning of the upcoming nuptials, to mundane but practical matters such as updating official documents, to creating social media hashtags. A wedding is after all a momentous occasion in a person’s life, and planning is key. It might be safe to say, however, that the thought of how marriage will impact one’s inheritance rights and succession planning in anticipation are usually not top of the list.

 

In this blog, we discuss this important but rarely discussed topic – the effect of marriage on inheritance rights and planning in anticipation of marriage. As this is a vast topic and issues vary depending on the facts of each case, we have discussed some of the key issues and limited the discussion in this post to Hindus.

 

Marriage between Hindus

 

Impact on married person: If a Hindu marries another Hindu, there is no impact on the right of that person or his/her progeny to inherit from their relatives. Moreover, a Hindu woman continues to remain a coparcener in her father’s Hindu Undivided Family (HUF), although she does not become a coparcener in her father-in-law or husband’s HUF. In case the husband dies intestate (without a Will), she will be entitled to a portion of his personal assets but not his HUF.

 

Impact on succession to a person’s estate: There will, however, be an impact on succession to such a person’s estate should he or she pass away. For example, if an unmarried Hindu man dies intestate, then his entire estate is inherited by his mother as his Class I heir, but after his marriage, his wife and mother receive an equal share (after his children are born, they also get equal shares).

 

If an unmarried Hindu woman dies intestate, then her entire estate is inherited by her parents equally. However, post marriage, her parents lose their inheritance rights. After marriage, a Hindu woman’s estate is first inherited by her husband (till they have children), and after the husband passes away, by the heirs of the husband. This would be the position even with respect to the property/ properties that she may have inherited from a grandparent or property received on partition of her father’s HUF.

 

Inter-religious marriages 

 

Marriage between a Hindu and a person belonging to another religion may be validly solemnised in two ways:

 

  1. Under the procedure laid down by the Special Marriage Act, 1954 (SMA), without religious conversion of either of the parties; or
  2. Under personal law of a religion by religious conversion of one of the parties to such religion, if required.
 

Inter-religious marriages under SMA

 

Impact on married person: If a Hindu is a coparcener in an HUF, then the solemnisation of his marriage with a person of another faith (except a person professing the Buddhist, Sikh or Jain religion) under the SMA (i.e. before the Marriage Officer) will sever his status as coparcener of such an HUF. In effect, the person’s share in the family properties becomes defined at once and vests separately[1]. He or she cannot later claim any right of survivorship in family properties. This is particularly relevant if a significant portion of the family’s estate, particularly the family home or business, is held by an HUF.

 

However, he or she will continue to be able to inherit property (personal, not held by an HUF) from his or her family through intestate succession.

 

Impact on succession to person’s estate: Succession to such a person’s property if the person passes away intestate, will be governed by the Indian Succession Act, 1925 (Indian Succession Act) and not the Hindu Succession Act, 1956 (Hindu Succession Act). The same principle applies even to intestate succession to the property of the children of such person. This principle does not apply, however, if a Hindu has married a person who professes Buddhist, Sikh or Jain religion.

 

An illustration of how this affects succession is as follows: If a Hindu male passes away intestate, then his mother would be entitled to his entire estate under the Hindu Succession Act. However, if he passes away after having solemnised his marriage under the SMA, then (if he does not have children), his property will be divided between his widow and father under the Indian Succession Act and the mother loses her inheritance rights.

 

Inter-religious marriages by conversion

 

Impact on married person: If, instead of solemnising the marriage under the SMA, a Hindu converts to another religion (Islam or Christianity[2], in most cases), then the impact on inheritance rights varies from that occurring on solemnisation of marriage under the SMA.

 

If a Hindu converts to another religion before marriage, there will not be any implication on his or her ability to inherit from his or her Hindu relatives. This position has been confirmed by Indian courts on the ground that renunciation of a particular religion and converting to another is a matter of choice, and it cannot cease relationships which exist by birth[3].

 

However, conversion of a coparcener creates a deemed partition of an HUF under Hindu law and therefore the converted person’s right of survivorship in the HUF does not survive.

 

Impact on descendants of married person: Although the convert himself/herself is not prejudiced, children born to the convert after his/her conversion and their descendants will not be able to inherit property of their Hindu relatives under Hindu law on intestate succession. That said, this prohibition is removed if the children of the convert or their descendants revert to Hinduism before the succession opens.

 

For example, if a Hindu woman converts to Christianity, she will be able to inherit property from her father if the father passes away intestate; subsequently, after her demise, her children will be able to inherit this property from her. However, if the Hindu woman dies before her father, her children will not be able to inherit the property from her father (their grandfather) if he passes away intestate, unless they have converted to Hinduism before their grandfather’s demise.

Impact on succession to a person’s estate: There is also an impact on succession to the estate of the convert themselves. If the person converts to Christianity, he/she may bequeath their entire estate by Will – as they would have been able to do as Hindus, but if they pass away without a Will, then their property will devolve as per the Indian Succession Act and not Hindu law. An illustration of the impact of this change has been explained earlier.

 

The impact on succession is greater if the conversion is to Islam. Firstly, under the forced heirship rules of Sharia law, a person’s ability to bequeath his estate by Will is limited (only one third of the property may be bequeathed without the consent of all heirs). This is unlike the position for Hindus, who may bequeath their entire estate by Will to any person of choice. Thus, if a Hindu has executed a Will of his/her estate before marriage, then there could be an impact on the bequests under the Will, depending on the Islamic sect of the convert.

 

Secondly, if the person passes away intestate, there would also be an impact on the heirs who will inherit from him/her as succession will be as per Sharia law rather than Hindu law. In this regard, Indian courts[4] have held that as per Muslim law, a Hindu cannot be a successor to a Muslim’s estate; therefore, the convert’s birth family, being Hindus, would not be entitled to inherit from the estate of the convert if he or she passes away intestate.

 

Planning in Anticipation

 

It is evident from the above discussion that there is a possibility of a significant impact on the inheritance rights of a Hindu as well as his or her birth family and children upon marriage. The impact is not only on the person’s ability to inherit from his or her relatives and vice-versa, but also the children’s ability to inherit from such person and their Hindu relatives. Hence, it is advisable that each family undertakes the exercise of putting in place estate and succession plans or revisiting them upon the marriage of a close family member.

 

This exercise could involve preparing or updating Wills prepared prior to the marriage to ensure that a person who might otherwise be disinherited continues to receive their share of inheritance. Lifetime gifts of property may also be considered, bearing in mind taxation and stamp duty implications. Alternatively, a private trust – which provides the twin benefits of consolidation and long-term holding of wealth – may be established to hold property for the benefit of the married person and their future children. Further, if a person is likely to cease being a coparcener of an HUF, the family may consider partitioning the HUF prior to the marriage and distributing the property representing his or her share to the person.

 

In addition, families may consider putting in place family arrangements or charters to record their understanding on division of property.

 

As a concluding remark, we may add here that although this blogpost is limited to impact of marriage on inheritance rights of Hindus, needless to say, marriage has an impact on persons of every faith; hence it would be advisable for each family to undertake or revisit an estate and succession plan on account of a wedding in the family.

 

* The authors were assisted by Harpreet Singh Gupta 

 

 

For further information, please contact:

 

Radhika Gaggar, Partner, Cyril Amarchand Mangaldas

radhika.gaggar@cyrilshroff.com

 

[1] Smt. Mira Devi and Ors. v. Smt. Aman Kumari, AIR 1962 MP 212.

[2]  As per Section 4 of The Indian Christian Marriage Act, 1872, only one of the parties to the marriage needs to be a Christian. Therefore, a Hindu marrying a Christian need not convert to Christianity. However, it is not uncommon for persons to convert before marriage particularly on account of customs.

[3]  Balchand Jairamdas Lalwant v. Nazneen Khalid Qureshi, AIR 2018 Bom 103.

[4] Suresh Babu v. V.P. Leela, 2006 (3) KLJ 156; Ponniah Nadar Devadas Silas v. Esakki Deviana and others, AIR 1955 TC 180.