INDIA Law and Practice Contributed by: Rishabh Shroff, Kunal Savani and Chirag Shah, Cyril Amarchand Mangaldas
3. Intestacy and Forced Heirship Laws 3.1 Intestate Succession Intestate succession occurs when an individual does not leave a will in respect of their estate. The Indian Succession Act, 1925 (ISA) is applicable to wills of individuals of all religions, other than Muslims. The rules applicable for intestate succession are more complicated than the rules for testamentary succes- sion, and are not common for individuals of all reli- gions. The rules of intestate succession differ accord- ing to the personal law governing the deceased, which is determined by their religion. • For Hindus, Buddhists, Jains and Sikhs, the Hindu Succession Act, 1956 establishes a class-based hierarchy whereby Class I heirs (widow, children, mother) inherit simultaneously and equally. Only if no Class I heirs exist do Class II heirs (father, sib- lings) inherit, followed by agnates and cognates. • For Muslims, the law of succession is uncodified and derives from the principles of Sharia. These principles are further differentiated across sects and sub-sects. For example, the rules applicable to Sunnis may vary from those governing Shias, and within the Shia community, the rules followed by Bohris may differ from those observed by Cutchi Memons. Muslims are subjected to forced heirship rules as noted in 3.2 Forced Heirship . • For Christians and Parsis, intestate succession is governed by the ISA. In the case of Christians, the estate is distributed according to statutory schedules, with the widow and children sharing in defined proportions depending on surviving family members. For Parsis, the widow (or widower) takes a share equal to that of one child, with a minimum of half the estate if only one child survives, while lineal descendants inherit per stirpes. 3.2 Forced Heirship There is no forced heirship regime in India except in relation to Muslims, who are governed by Islamic law, and residents of the state of Goa, who are governed by the Goa Succession, Special Notaries and Inven- tory Proceeding Act, 2012.
Under Islamic law, a Muslim cannot by a will dispose of more than one-third of the surplus of their estate after payment of funeral expenses and debts. Testa- mentary dispositions in excess of such one-third limit cannot take effect unless the heirs consent to them, and the modality of obtaining such consent differs from sect to sect. However, since the introduction of the UCC in Utta- rakhand, the principle of fixed shares does not apply to Muslims anymore in Uttarakhand and general rules of succession regarding the estate of a Muslim dying intestate are now applicable. These rules would apply to relatives (of the deceased) specified in Class I and Class II of Schedule 2 of the UCC. Fathers (regardless of their religion) have been recognised as Class I heirs and are eligible to receive property by way of intestate succession in the state of Uttarakhand. Goa has its own law influenced by its Portuguese his- tory which governs succession to the estate of an indi- vidual domiciled or born in Goa. Residents of the state of Goa, regardless of their religion, cannot dispose of more than 50% of their estate (which is automati- cally transferred to that deceased’s surviving parents). Further, in case the deceased is not survived by their parents, the other ascendants of the deceased will be entitled to inherit one-third of the deceased’s estate. 4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections In India, any property which is self-acquired does not become a jointly owned property by virtue of mar- riage as India does not follow the principle of com- munal ownership of property. Only ancestral property is treated differently. The spouse who owns the self-acquired property can transfer it without the consent of the other spouse. Self-acquired property is protected under Hindu Law, and even the Class I legal heirs of an individual (includ- ing their spouse) who have acquired such property cannot claim a share in it during the owner’s lifetime. However, after the owner’s death, the legal heirs can claim a share in the property as per the applicable
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