Do Second Wife And Her Children Have Property Inheritance Rights?

Do Second Wife And Her Children Have Property Inheritance Rights?

Do Second Wife And Her Children Have Property Inheritance Rights?

Vijay Kumar, 55, from Hyderabad decided to remarry after his wife’s death. As a parent to an 18-year-old daughter, he understood his duty to have a candid conversation with his only child about the new family member. While preparing a will for his self-acquired property, he also made sure to apprise his daughter about the inheritance rights of her stepmother and her step-siblings - his second wife’s children.

According to the Hindu Succession Act, 2005, a daughter has the right on her father's ancestral property if she can prove her succession. If she is denied her rightful share, then she can move court for separate possession. The law also says that the children of the second wife have equal rights as the children of the first wife on their father’s (self-acquired and ancestral) property.

MakaaniQ brings more details:

The rights of second wife and children

Upon the death of the father, the daughter, her stepmother and step-siblings - who are the legitimate children of the father - will get equal share as coparceners in the property. The rule is applicable to both self-acquired and ancestral property. However, it would become difficult for the daughter if the father executes a will through which she is deprived of her share in the property. Though, she has a chance to claim her right on the property if she challenges the will in the court and successfully proves it to be invalid.

The law says that on father’s demise intestate, his child would have one-fourth share in his self-acquired properties. But, the son or daughter cannot claim their share on self-acquired properties during the father’s lifetime.

The Hindu Succession Law considers the following persons as the Class I heirs of a person who has died interstate:

  • Son, Daughter, Widow, Mother, son of a predeceased son, daughter of predeceased son, widow of predeceased son, son of a predeceased daughter, daughter of predeceased daughter, son of predeceased son of predeceased son, daughter of predeceased son of a predeceased son and Widow of predeceased son of a predeceased son.

Thus, children from both the marriages of the interstate count among the legal Class I heirs and will get equal rights in the property.

If there are no heirs in Class I, the property shall move to the Class II heirs as mentioned below:

  • Father
  • Son's daughter's son, son's daughter's daughter, brother, sister, daughter's son's son, daughter's son's daughter, daughter' daughter's son, daughter's daughter's daughter
  • Brother's son, sister's son, brother's daughter, sister's daughter
  • Father's father; father's mother
  • Father's widow; brother's widow
  • Father's brother; father's sister
  • Mother's father; mother's mother
  • Mother's brother; mother's sister

If the father has not legally married

Since Vijay Kumar had a legal marriage, his second wife and children will have their rightful share in his property. In the event of a divorce or the death of the former wife, the second wife is legally entitled to her share of the property.

However, in a judgement some years ago, the court upheld the right of the first wife of Sheetaldeen. Sukhrana Bai had deserted her husband who later married another woman, Vidyadhari, with whom he had four children. Sheetaldeen cited his second wife as nominee who received pension and other benefits - that came out of his employment. And, after his demise Sukhrana Bai filed succession certificate in court claiming her share in the property.

Addressing a case where the two wives filed succession certificates, the trial court made a verdict in favour of the second wife whereas the Madhya Pradesh High Court favoured the first wife. On further appeal, the final decision came in favour of the former wife that entitled her one-fifth of the property share. The four children too received their legitimate share, according to section 16 of the Hindu Marriage Act, 1955. As per law “if a person marries a second time during the subsistence of his first marriage, children born of the second marriage will still be legitimate.”

However, the second wife lost her share in the property because her husband was not divorced before he remarried and therefore her rights became null and void. Had Sheetaldeen titled his property jointly with his former wife, then the inheritance by the four children is not possible, as such assets are likely to be considered marital property upon divorce. A marital property is the one which either spouse bought during the marriage. 

Last Updated: Mon Jul 23 2018

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