Abstract

Inheritance refers to the transfer of property governed by the laws of descent and distribution when a person dies intestate. Cohabiting partners and their children do not automatically inherit property, and the absence of specific inheritance laws for the queer community complicates the determination of property ownership in case of inheritance. Same-sex couples face structural and legal impediments in jurisdictions that do not grant legal recognition to their partnership or marriage. Crucial legal protections such as intestate inheritance, joint ownership and rights to the deceased partner’s estate are missing which in turn causes immense legal and (ultimately) financial hardship. Children raised by same-sex couples face the consequences of this lack of recognition of same-sex partnerships since they can legally inherit only from the adoptive parent, not their partner. In the absence of legal recognition, such families have to place reliance on wills and estate planning to safeguard their rights. The scope of this paper shall include a detailed discussion of the rights of inheritance of same-sex couples (or spousal inheritance) and their children in light of the question of legal validity of same-sex marriages. Since marriage is a key source of a bundle of rights, including inheritance rights, this paper shall engage with its legal benefits in terms of inheritance for spouses and children. The paper is a critique of the heteronormative assumptions underpinning the law and argues for the inclusion of chosen families in inheritance frameworks. Further, the paper shall look at the question of inheritance rights of children of same-sex couples in detail and end with an analytical note of the deductions of this research.

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