GENDER BIAS IN INHERETANCE LAWS OF INDIA

The Indian Succession Act, 1925 broadly deals with the two categories of succession, viz.
testamentary succession and intestate succession. In a case where there is a written will
testamentary succession is applicable. Testamentary succession refers to a circumstance
when the deceased leaves behind a will and the transfer of the property take place as
indicated in their will.
The Indian Succession Act, 1925 is ideally applicable to this. So, will’s construction concept,
validity, and revocation are defined in Part VI under Sections 57 to 391 of the act.
On the other hand, when there is no will and the properties of the deceased need to be
distributed as per the religious laws, intestate succession is applicable.
The subject of inheritance is governed by both personal laws and state laws in India.
The personal laws regulate marriage, divorce, maintenance, inheritance and succession for
the citizens. These laws differ in line with the religion that a person belongs to.
About 58% of the Indian population depends on agriculture for their livelihood. So property
extends to agricultural fields as well.
While the inheritance of property is governed by personal laws which are uniform across the
country, inheritance of agricultural land is governed by state laws. Biases are seen both in
state and personal laws as listed below.
1.BIASES IN PERSONAL LAWS
❖ HINDU [HINDU SUCCESSION ACT]
Inheritance rights in India for Hindus, Sikhs, Buddhists and Jains (henceforth referred to as
Hindus only for brevity) were governed by the Hindu Succession Law since 1956.
It made a distinction between joint family property (ancestral property, or any property or
assets held jointly by the extended family, e.g. land) and individual property (anything
acquired by an individual on his own within his lifetime).
Daughters had equal rights to their father’s individual property, once a Hindu male died
intestate i.e. without a will, but they did not have rights to the joint family property.
Sons, however, enjoyed a right to joint family property by birth, and were regarded as
belonging to the “Hindu coparcenary”.
Being coparceners implied that their share of the property could not be willed away, and they
alone could demand a division of the ancestral property while older coparceners were alive.
Since the proportion of people in India who died without making a will is very high, most of
the property settlements were made in accordance with the HSA and women ended up
inheriting significantly less than men.
 In order to eliminate this gender inequality inherent in the HSA, five states amended the law
such that the daughter of a coparcener too would become a coparcener by birth, thereby
placing daughters on an equal footing with sons.
A coparcenary comprises the eldest member and three generations of a family. It could earlier
comprise, for instance, a son, a father, a grandfather, and a great grandfather. With the
amendment of the HSA, even women of the family can be a coparcener.
The amendment was passed by Kerala in 1976, Andhra Pradesh in 1986, Tamil Nadu in
1989, and Maharashtra and Karnataka in 199415. Interestingly, the amendments applied only
to women who were unmarried at the time that they were implemented.
The HSA was amended nationwide in 2005, in the same spirit as those in the aforementioned
states.

❖ THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT- with

reference to succession

A Muslim daughter inherits only half of the inheritance given to a Muslim son and a
wife’s right to a husband’s property is half of a husband’s right to the wife’s property.

It is to be noted the terminology used by the laws. Sons are considered to be sharers
of the properties whereas daughters are considered to be residuary.

Meher i.e. Dower promised by husband, would be 1st charge (priority debt), if the
same has not been paid by deceased during his lifetime.

❖ CHRISTIAN SUCCESSION
In the case of Christians the laws of Indian Succession Act, 1925 is applicable to both
testamentary and intestate succession.

2.BIAS IN STATE LAWS

While the inheritance of property is governed by personal laws which are uniform across the
country, inheritance of agricultural land is governed by state laws. In states such as Uttar
Pradesh (up until 2020) and Uttarakhand, transgenders were not allowed to inherit land. In
States such as Haryana, Himachal Pradesh, Jammu and Kashmir and Punjab, daughters do
not inherit the farm land of their parents.
These inheritance laws have two major implications:

1. Women get an unequal access to the financial assets. The asset ownership in India is
skewed in favour of men. The exact extent of this cannot be calculated due to the lack
of data on the subject collected by the government.
2. As all the laws are written in gender binary, people identifying themselves as gender
fluid or non-binary are completely excluded from the inheritance laws. During the
 inheritance cases, these people are forced to be bucketed as either male or female to
claim their shares. This identity is sometimes borrowed from their birth certificate.
There are a lot of instances where such people are denied the rights to inherit the
family property, thus putting them in a financially stressful situation.
INHERETANCE LAWS AT INTERNATIONAL LEVEL – A GLANCE
INHERETANCE RULES IN UNITED KINGDOM
When a person dies without leaving a valid will, their property (the estate) must be shared out
according to certain rules. These are called the rules of intestacy. A person who dies without
leaving a will is called an intestate person.
Only married or civil partners and some other close relatives can inherit under the rules of
intestacy.
If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate
will be shared out, not the wishes expressed in the will.
The Inheritance (Provision for Family and Dependants) Act 1975 is an Act of the United
Kingdom Parliament concerning inheritance in England and Wales.
Married partners and civil partners
Married partners or civil partners inherit under the rules of intestacy only if they are actually
married or in a civil partnership at the time of death. So if they are divorced or if their civil
partnership has been legally ended, they can’t inherit under the rules of intestacy.
Partners who separated informally can still inherit under the rules of intestacy. Cohabiting
partners who were neither married nor in a civil partnership can’t inherit under the rules of
intestacy.
If there are surviving children, grandchildren or great grandchildren of the person who died
and the estate is valued at more than £270,000, the partner will inherit:
• all the personal property and belongings of the person who has died, and
• the first £270,000 of the estate, and
• Half of the remaining estate.

If there are no surviving children, grandchildren or great-grandchildren, the partner will

inherit:
• all the personal property and belongings of the person who has died and
• The whole of the estate with interest from the date of death.
Close relatives
Children
Children of the intestate person will inherit if there is no surviving married or civil partner. If
there is a surviving partner, they will inherit only if the estate is worth more than a certain
amount.
Children - if there is no surviving married or civil partner
If there is no surviving partner, the children of a person who has died without leaving a will
inherit the whole estate. This applies however much the estate is worth. If there are two or
more children, the estate will be divided equally between them.
Children - if there is a surviving partner
If there is a surviving partner, a child only inherits from the estate if the estate is valued at
over £270,000. If there are two or more children, the children will inherit in equal shares:
All the children of the parent who has died intestate inherit equally from the estate. This also
applies where a parent has children from different relationships.
A child whose parents are not married or have not registered a civil partnership can inherit
from the estate of a parent who dies intestate. These children can also inherit from
grandparents or great-grandparents who have died intestate.
Adopted children (including step-children who have been adopted by their step-parent) have
rights to inherit under the rules of intestacy. But otherwise they have to be a biological child
to inherit.
Children do not receive their inheritance immediately. They receive it when they:
• Reach the age of 18, or
• Marry or form a civil partnership under this age.
Until then, trustees manage the inheritance on their behalf.
Who cannot inherit the property
The following people have no right to inherit where someone dies without leaving a will:
• unmarried partners (sometimes wrongly called 'common-law' partners)
• lesbian or gay partners not in a civil partnership
• relations by marriage
• close friends
• carers
If there are no surviving relatives
If there are no surviving relatives who can inherit under the rules of intestacy, the estate
passes to the Crown. This is known as bona vacantia. The Treasury Solicitor is then
responsible for dealing with the estate. The Crown can make grants from the estate but does
not have to agree to them.
INHERETANCE LAWS IN USA
There are three systems of inheritance laws in the U.S. The inheritance laws differ from state
to state.
Community Property

The first type of inheritance law is known as community property. Under this system, each
spouse automatically owns half of what they each earned while married. When one person
expires, half of their estate automatically goes to their partner, while the latter half may be
distributed to other beneficiaries.
If a will has been written, then the deceased had the option of reserving more than half of
their assets for their spouse. The states which follow community property laws are Arizona,
California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
The term ‘Community Property’ usually refers to ‘property’ acquired by either spouse during
the course of their marriage. This ‘property’ includes:
1. Income received from work
2. Property bought during the marriage with income from employment
3. Separate property that a spouse gives to the marriage community (and therefore will be
obliged to share with the spouse).
A spouse will retain a separate interest in property, meaning they haven’t got to automatically
share it with a spouse, if:
1. It is acquired as an inheritance or as a gift
2. It is acquired prior to the marriage
3. There is an agreement in place between the spouses expressly stating that the property be
kept separate from the marriage community.
Where the deceased wishes to give less to the remaining spouse, a written agreement must be
in place outlining this approach. This automatic right of the surviving spouse to automatically
inherit half can also be negated by a prenuptial agreement.
Common law
All of the states not listed above are common law states. Here, a spouse is not automatically
entitled to the one-half interest in all property acquired during the marriage. Under common
law, the ownership of property is determined by the name on the title of the property or by
whomever’s income was used to purchase it.
Many states will still give the surviving spouse the right to claim a third or even half of the
deceased’s estate, also regardless of the terms of the will. However, these provisions only
apply if the surviving spouse petitions the court for their share.
After divorce
In some states, gifts made in a will to an ex-spouse will be automatically revoked. But in
other states, divorce won’t change what the ex spouse is entitled to at all.
Children’s rights
In most US states, children do not have a legally protected right to inherit property but they
will be protected where they have been unintentionally left out of the will. For example, US
law presumes that where a parent has included all children in a will bar one, who was born
after the will was drawn up, it will be presumed that this omission was accidental and the
child will be awarded an equal share with their siblings. Where omissions are intentional –
they need to be expressly stated within the terms of a will.
Grandchildren’s rights
Again there is no legal right stating that grandchildren are entitled to inherit property from a
grandparent. In some US states, if the parent of the grandchild has died, the grandchild may
have a statutory right to inherit property from a grandparent if the will doesn’t expressly state
the intent to disinherit the grandchild.
INHERETANCE LAW IN DENMARK

Intestate succession in Denmark is governed by the Danish Inheritance Act of January 1,

2008. Denmark is a member state of the European Union but has not adopted European
Succession Regulation 650/2012 (‘Brussels IV’).
According to this act, if the deceased was married and did not have separate property as a
result of a prenuptial agreement or conditions of a deed of gift or will, a division of
matrimonial property is the first thing that takes place. Half of the spouses’ total net assets
constitute the estate of the deceased. This then becomes subject to division between the heirs.
The surviving spouse is also an heir.
If the deceased was married
If the deceased was married, but did not leave any children/descendants, the spouse inherits
the entire estate. If the deceased was unmarried, but had descendants, his/her descendants
inherit everything.
Unmarried couples are not intestate heirs of their partner, unless they make a will that
includes them.
If one of the children has died
If one of the children has died before the testator, his or her children will succeed to the share
of the predeceased child. There is no difference between adopted children and biological
children, regardless of being born within or outside marriage.
If the deceased was unmarried and had no descendants
Only if the deceased was unmarried and had no descendants, are the parents of the deceased
entitled to inherit. If the deceased leaves no spouse or children, the estate will be inherited by
the parents of the deceased. If one of the parents has died, the deceased parent’s (other)
children succeed in that share. If the predeceased parent leaves no (other) children, the other
parent (or his or her other children) will succeed to the entire estate.
If there are no surviving relatives
If there are no surviving relatives in the line of parents or their descendants, the estate will go
to the grandparents of the deceased or their children. Intestate succession stops with the
children of the grandparents (siblings of the deceased’s parents) – the cousins of the deceased
are not legal heirs. If there are no legal heirs, the inheritance goes to the Danish state.
Compulsory Legal Heirs
Danish law provides for compulsory legal heirs. The spouse and the descendants are
compulsory heirs, which mean that they cannot be disinherited without their written consent.
All other legal heirs (parents etc.) can be disinherited by writing a will.