Context

Understanding succession rights within the legal framework of India pose significant challenges for non-resident Indians (NRIs) married to foreign nationals. 

• Legal Complexities of Financial Entitlements of Children and Spouses: Questions regarding the financial entitlements of children and spouses of NRIs whose marriages were not solemnized in India frequently emerge

Succession Rights in India

Succession is currently governed by the Indian Succession Act (ISA), 1925, the Hindu Succession Act (HSA), 1956; and the uncodified Muslim personal law.

• Hindu Inheritance law is governed by the Hindu Succession Act, 1956. This Act does not apply to any property succession, which is regulated by the Indian Succession Act, 1925

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Property Inheritance Under Hindu Law: It is divided into the following:

• Testamentary Succession: The property is distributed when an individual dies by making a will.
• Intestate Succession: It involves the distribution of property by the Operation of Law when an individual dies without making a will.

Legal Provisions for NRIs’ Marriage and Inheritance Rights

• Marriage Registration Requirements for NRIs: According to Legal experts,  couples involving NRIs who marry abroad don’t need to register their marriage in India, provided it is duly registered in the country where they wed. 
  • A marriage certificate from India is unnecessary for their spouses’ and children’s inheritance rights.
• Entitlements in Divorce or Death: Even if such a couple divorces or if one of the spouses dies, the surviving spouse and their children are entitled to receive properties in India through will or succession.
  • Even children born out of live-in relationships or adopted by Indians abroad are entitled to succession in India. 
• Inheritance rights Regardless of Residential status:  They are entitled to inheritance in India regardless of whether both parties are resident Indians or NRIs, or one is a foreign citizen married to an NRI.

• Foreign Spouse Entitlement: The foreigner spouse is also entitled to inherit the assets of a late NRI spouse in India as being a foreigner does not exclude them from the line of succession. Succession Laws for NRIs: The laws of succession do not bar anyone from receiving property in India through succession, which includes NRIs and their next of kin.
  • A child born out of such a wedlock is automatically entitled to receive properties in India through succession. 
  • A marriage that is duly registered abroad as per local laws is valid in India for claiming succession.
  • NRIs have two options to make this process smoother: 
    • They can either register their marriage under the civil laws of the country they got married in and obtain an apostille, or 
    • They can register their marriage under the Foreign Marriage Act.

Legal Steps for Succession Rights in India

• NRIs marrying foreign citizens in India must register their marriage under the Special Marriage Act. 
  • In such marriages, succession rights are governed by the Indian Succession Act, 1925, rather than the personal laws of the Indian spouse.
  • However, if both parties are Hindus, despite being from different countries, the Hindu Succession Act, 1956, and its 2005 amendment apply.

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• Need for OCI Card: For an NRI who is an Indian citizen, no further action is needed to safeguard succession rights in India post-marriage. 
• However, NRIs who are citizens of another country must process an Overseas Citizen of India (OCI) card for faster processing of their rights under personal succession laws based on their religion.
• Need for Marriage Certificate: Beyond succession, a marriage certificate is crucial for obtaining visas, passports, insurance, bank accounts and other documents for foreign spouses and children in India.