Many women are not clear about their rights in the property of their husbands. The rights of a wife in her husband’s property after his death depend upon:
- The kind of joint ownership of husband and wife
- nature of property of the husband – self-acquired or ancestral
Joint ownership
In case of property jointly acquired by both husband and wife during marriage, the nature of ownership determines the rights of a wife in the property after the death of the husband. The joint ownership can be:
Tenancy in common
There is no right of survivorship. When one co-owner dies, his share goes to the legal heirs.
Joint Tenancy
When one co-owner dies, his share passes on to the surviving co-owners.
Tenancy by entirety
Tenancy by entirety is a special kind of joint tenancy which takes place only between husband and wife. In this kind of ownership, both the spouses cannot pass their share in the property to a third person without the consent of others. This tenancy can be terminated either by mutual agreement, legal separation or by the death of one of the spouse.
Presumption of ownership:
Unless specifically stated in the document of property, the law presumes tenancy in common between the co-owners. However, in case of a married couple, the presumption is for the tenancy by entirety unless otherwise specified in the deed.
It is always advisable to disclose the nature of the ownership in the title document to avoid legal hassles later.
Read: Do grandchildren have a right to their grandfather’s property?
Distribution of property to wife and other legal heirs:
A. If the joint ownership is –
- Tenancy by entirety or joint tenancy with survivorship-then after the death of the husband the property goes to the wife.
- Tenancy in common – the legal heirs of the deceased husband will become co-owners and the share in the property will devolve as per provisions of Hindu Succession Act or personal laws or India Succession Act as applicable.
B. In case of joint property of husband and wife : If the fact is established that
- the property is acquired by the husband but held in joint names- the entire property devolves among legal heirs including wife as per the applicable law.
- the property is purchased by the wife with her earnings alone and held in joint names -the entire property belongs to wife.
the property is acquired by the husband and wife together with both having contributed towards the purchase, the property is divided as per the contributions made and then from the share of the husband, the wife will get her share as a legal heir as per applicable law.
Read: Can a father give his property to one son?
Self-acquired and ancestral property:
- Under Hindu Law: the wife has a right to inherit the property of her husband only after his death if he dies intestate. Hindu Succession Act, 1956 describes legal heirs of a male dying intestate and the wife is included in the Class I heirs, and she inherits equally with other legal heirs.
If the property is:
Self-acquired- If husband dies intestate, wife inherits as Class I heir
Ancestral – Wife is entitled to get a share out of the share of her husband’s property, but she has no right to claim partition. She gets her share as class I legal heir when the partition of the ancestral property is affected.
Read: Division of property between brother and sister after father’s death
For people of faiths other than Hindus– the succession to property is governed by personal laws or The Indian Succession Act.
- In the case of Christians, the property is considered as self-acquired despite the mode of acquisition and wife has a right to the property of deceased husband along with other legal heirs.
- Muslim law also recognises the right of the wife in the property of the deceased husband – generally one-fourth of the property if no children and one eighth if children are there.