Introduction:
LGBTQ+ rights in India have advanced notably through judicial rulings. In the landmark Navtej Singh Johar v. Union of India case, the Supreme Court decriminalised consensual same-sex relationships and reaffirmed constitutional values such as dignity, privacy, equality, and personal autonomy.
Despite these legal strides, many areas of personal law continue to overlook LGBTQ+ relationships. One major gap lies in the area of succession. When one partner passes away without being legally recognised as a spouse, the surviving partner may face significant legal and financial challenges.
This issue is particularly pressing in cases of intestate succession—when someone dies without a will. Existing inheritance laws typically define heirs based on marriage or blood relations, leaving long-term LGBTQ+ partners in a legally uncertain position.
The legal landscape after Supriyo v. Union of India:
The Supreme Court’s decision in Supriyo @ Supriya Chakraborty v. Union of India marked progress by affirming the right of queer individuals to form relationships and directing the central government to consider their legal and administrative rights.
However, the Court stopped short of recognising a fundamental right to marriage for same-sex couples. It also declined to interpret the Special Marriage Act, 1954, as permitting same-sex unions, stating that such a change falls within the legislature’s domain.
This distinction carries serious implications. Marriage is not only a personal bond but also a legal status that confers rights related to property, inheritance, spousal support, and financial benefits. Without legal recognition, surviving partners are deprived of these protections by default.
Gendered language in succession laws:
India’s succession framework consists of multiple personal laws. The Hindu Succession Act, 1956, governs intestate succession for Hindus, and Section 15 explicitly names the husband as a primary heir to a woman who dies without a will.
Similarly, the Indian Succession Act, 1925, outlines rights for widows and widowers in cases of intestacy. Section 35 ensures that a surviving husband has the same inheritance rights as a widow.
These provisions reflect a broader pattern: spousal inheritance rights are tied to legally recognised marriage. Since same-sex marriage remains unrecognised in India, LGBTQ+ partners cannot be classified as spouses under current law.
The core issue, therefore, is not an outright ban on inheritance by LGBTQ+ individuals, but the absence of legal recognition that would grant their partners equivalent status to spouses.
Intestate succession: The greatest risk:
The most critical vulnerability arises when an LGBTQ+ individual dies without a valid will. In such cases, statutory succession rules prioritise blood relatives over unmarried partners, even if the couple shared a long-term, committed relationship.
Consider two individuals who have lived together for years, jointly managed household expenses, and built intertwined financial lives. If one dies intestate, the survivor has no automatic claim to the estate and must pursue separate legal avenues to assert ownership—unlike a married spouse, who inherits by law.
This creates a disconnect between the emotional and economic reality of the relationship and its legal standing.
The Special Marriage Act and the inheritance gap:
The Special Marriage Act, 1954, provides a secular route for marriage registration. However, in the Supriyo case, the Supreme Court refused to extend its provisions to same-sex couples.
This limitation extends beyond ceremonial recognition. Legal marriage under statutory frameworks triggers a range of rights, including those related to inheritance.
Thus, the inability to marry legally leads to a chain of consequences: no formal spousal status, no automatic inheritance rights, and no statutory protection. This underscores why succession issues must be viewed alongside the broader need for legal recognition of queer relationships.
Wills: A limited remedy:
A will can serve as a crucial tool for LGBTQ+ individuals to secure their partner’s future. Provided it meets legal requirements, testamentary succession allows property to be transferred to a chosen beneficiary. Joint ownership, nominations, and other estate planning tools can also offer some protection.
Yet private arrangements alone cannot fully address the problem. Not everyone has access to legal advice or realises the importance of drafting a will. Wills can also be challenged in court, and certain assets may fall outside their scope due to contractual or statutory rules.
Most importantly, placing the burden on LGBTQ+ couples to undertake complex legal planning—just to secure rights automatically granted through marriage—imposes an unfair obligation. While such measures help, they are no substitute for a coherent, inclusive legal framework.
Rethinking the legal definition of “family”:
The succession issue also points to a deeper challenge: how the law defines family.
Traditional inheritance systems prioritise marital and biological ties. Yet many LGBTQ+ individuals form lasting partnerships and “chosen families” that are central to their emotional and financial well-being—relationships that current laws often fail to acknowledge.
The Supreme Court’s observations in Supriyo highlighted several concerns for the government to consider: whether queer partners should be treated as family members for certain purposes, whether they should be allowed joint bank accounts, and how matters like inheritance, maintenance, financial benefits, and access to funeral rites should be handled.
These questions reveal that the legal challenges facing LGBTQ+ couples extend far beyond marriage rights.
Key gaps in the current system:
1. No automatic spousal inheritance
Simply being in a long-term LGBTQ+ relationship does not confer spousal status or inheritance rights under existing law.
2. Use of gender-specific terms
Words like “husband,” “wife,” “widow,” and “widower” in legislation reflect a system built around heterosexual marriage.
3. Dependence on private legal planning
While tools like wills and joint ownership help, they require proactive steps that not everyone can take.
4. Mismatch between constitutional rights and statutory law
While courts have upheld constitutional rights like dignity and equality, many laws have not evolved to reflect these principles.
5. Absence of a unified legal framework for queer unions
India lacks a comprehensive system that grants LGBTQ+ partners legal recognition and associated rights in inheritance, property, maintenance, and financial matters.
The path ahead:
Legislative reform is essential to bridge the gap between constitutional ideals and practical legal protection.
One solution could be introducing a gender-neutral civil partnership or civil union system. Such a framework could grant registered couples clear rights in areas like inheritance, property, maintenance, insurance, and financial benefits.
Alternatively, existing succession laws could be amended to use inclusive language and explicitly include registered partners among recognised heirs.
Administrative reforms are equally important. Clear guidelines on nominations, pensions, insurance claims, bank accounts, medical decisions, and funeral arrangements would provide greater security to surviving partners.
Any reform must also ensure that transgender and gender-nonconforming individuals are fully included.
Conclusion:
India has made meaningful progress in constitutional law by affirming the dignity, autonomy, and equality of LGBTQ+ individuals. Yet the lack of full legal recognition for queer relationships continues to create real-world hardships, especially in matters of succession.
The issue is not just about the right to form intimate bonds, but whether the law acknowledges the social, economic, and familial dimensions of these relationships.
Succession laws must evolve in line with constitutional values. A legal system that protects LGBTQ+ people during life but leaves their partners in legal limbo after death remains incomplete.
Recognising LGBTQ+ partners in inheritance law would go beyond technical reform—it would represent a vital step toward fulfilling the promise of equality and dignity enshrined in the Constitution.
By:- ALWINA AZAM
