Personal Finance

Does my son have same legal right to my ex-husband's property as his children from second marriage?

Each week, our experts answer readers’ queries related to the division of assets, will, succession and more. Here are this week’s estate planning dilemmas from our readers.

I and my husband have separated after four years of marriage and we have a two-year old son. My husband is planning to get married again after the divorce is finalised. He has two properties in his name. If he has children from his second marriage, will my son be able to stake a claim to these properties or will his children from second marriage have the sole claim over these? — Vandana Rastogi

If your husband’s properties are self-acquired and in his name, he can will these to whoever he wants via a written will. If, however, he dies intestate, that is, without a will, your son, as a Class I legal heir will have an equal right over the properties as the other legal heirs. If the properties are ancestral, your son, by virtue of birth can stake a claim to these properties.

My father passed away in 2004 without a will, while I got married in 2004. Will I have a share in my father’s property along with my brother? — Naina Sharma

As per the Hindu Succession (Amendment) Act, 2005, you have the same right over your father’s property as your brother and can stake a claim to the said property. Your marital status or the fact that your father died before 2005 has no bearing on your right to the property.

Our parents passed away last year, leaving behind me and my sister. My father had two houses, which were self-acquired and in his name. He had told me and my sister that he wanted us to have one house each, but he died without putting it in a will. Now, what will be the share each one of us will be entitled to with respect to these properties? — Mihir Saxena

According to the Hindu Succession (Amendment) Act, 2005, both sons and daughters have an equal right to the self-acquired property of their father if he dies without making a will. Hence, both you and your sister, as Class I legal heirs, will have an equal share in both the properties of your deceased father and can claim a right to it.

I was raised by my grandparents since my parents died when I was five years old. Now I am 22 years old. My grandfather has two self-acquired properties in his name. I have two uncles, who are my deceased mother’s brothers. Will my grandfather’s properties go only to my uncles or will I be able to stake a claim to these? — Ramit Sahni

The son of a predeceased daughter being a Class I legal heir as per the schedule in Section 8 of the Hindu Succession Act, 1956, has the same share in the property of his grandfather which his mother would have got if she were alive. So, he can claim her share along with the other legal heirs.


The responses are based on limited facts provided by the queries. It is advisable to consult a legal practitioner after presenting full facts and documents. Responses should not be considered as legal advice in any manner whatsoever.


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