Inheritance laws

[AnyaKimlin]

I know that if a father has a title and estate then any children born outside of a marriage in the UK can't inherit. (At least it used to be the case).

If the mother is the one that holds the title do the same laws apply?

 

[jastius]

it depends on the type of title and if there are any other legitimate heirs. if the woman died intestate then the unentailed assets would be divided per stirpes. The entailed assets of the estate would be reserved for the heir who succeeds the woman in the title unless the title isn't a hereditary appointment. However an entailed estate can exist with or without a title, per se. a natural born child is not prohibited from inheritance, only if the child remains unacknowledged as being legitimate. though children born in wedlock have lawfully enforced rights of inheritance that cannot be overlooked without an action of disinheritance by the testor, a natural born child legally acknowledged as being an lawful heir by the testor possesses an equal right of inheiritance as that of a child born in a marriage.

 

[The Judge]

I've started to write this post about a dozen times, as I keep thinking of all kinds of legal caveats. I'll try and keep it simple. This is English and Welsh law only -- Scotland and NI have their own legal jurisdictions.

Present day illegitimate children can inherit real (ie land, houses) and personal (ie goods, money) property under either parent's intestacy**, but they need to prove paternity when inheriting from the father. (**Obviously if there's a will, there's no problem anyway there.)

In the past, only legitimate (or later, legitimated) children could inherit on a father's intestacy, and there were various laws in the 20th century about this so if you're writing about a specific period I'd need to know when so I could check. (But go back far enough and Welsh law was different -- if the father acknowledged the child, he/she could also inherit.) All children could inherit on a mother's intestacy, though, in relation to personal property definitely and I'm pretty sure on real property.

Titles are different. Few women had titles in their own right, for one thing. Lady Diana Spencer was only "Lady" because her father was an earl -- so if she'd married a commoner her children would have had no titles (in the same way the Princess Royal's children have no titles). If she did have a title in her own right, eg as Anne Boleyn was Marquess of Pembroke, then its devolution would depend on the grant, which might well state that only legitimate offspring could inherit. (Possibly not relevant to you, but some titles could also pass to females, eg the present Countess Mountbatten of Burma, as that title was created with special remainder to the Earl's daughters, but only their heirs male.)

If the estate was entailed, as often happened in the past, then it could only pass in accordance with the tail -- ie under the terms of the original deed, and usually those revolved around legitimate male heirs.


EDIT: sorry, my brain wasn't wholly in gear last night -- I've corrected a very stupid mistake re Mountbatten. And just to make it clear -- not all titles are hereditary, so eg ex-politicians who are Baronesses can't pass those titles on as they are for life only.

 

[Abernovo]

In Scotland, upon proof of relation, a person's children are legally entitled to one third of the deceased's estate, or one half, if there is no surviving spouse. If the maker of the will tries to write them out, they petition the court to have their right affirmed. Quite what happens if the estate is not solely in Scotland, or the deceased will is registered in another jurisdiction (due to his primary residence being elsewhere), I don't know.

The surviving spouse is also entitled to a third, if there are children, and a half if not. The will can dispose of the rest. A brief summary is here.

Illegitimacy shouldn't be an issue. Nor, to my thinking (although I could be wrong) should the jurisdiction of the marriage - only the parentage of the persons claiming the inheritance.

 

[AnyaKimlin]

I have a son of a Duke and it is modern day. I want him to inherit the estate and title but I want him to have a relationship with the father. Currently the estate is in Scotland but it is not vital to the story -- I can easily move it to Northumberland.

The easiest way round that would be to have his mother inherit the Duchy in her own right and the father not be in the picture.

The alternative would be for the father to run off when he is a baby.

 

[The Judge]

Hmm. Not so sure about a Duchy being inherited by a woman, save for the Queen (who is Duke of Lancaster) -- they are usually titles which have been around a good while and are therefore limited to legitimate heirs male, and even if a woman could inherit, I'm pretty sure her heirs would also need to be legitimate.

It might be worth your while getting hold of Burke's Peerage as that might give a good bit more info on the subject if you're intent on making the boy illegitimate. Otherwise, it would be easier if the parents were married before the child's birth (perhaps long before the father inherited -- or even suspected he would inherit -- the dukedom).

NB This from the House of Commons Reform Committe might be of interest:

In the United Kingdom, however, 92 seats in the House of Lords continue for now to be reserved to holders of hereditary aristocratic titles. Only two of these 92 seats are currently occupied by women.

Frankly, I'm surprised it's as high as 2 out of 92!

 

[AnyaKimlin]

I might just take the easy option have the father marry the mother and then disappear. It would give me another story later on.

It's a made up Duchy - I went down the easy route of making up places.

 

[Abernovo]

I'd agree with The Judge (naturally ), in that the Dukedom and the Duchy would most likely be inherited by the woman's son. However, because many senior nobles have secondary titles - Robert, Duke of X and Earl of Z, for instance - which are interlinked, it's possible that she might inherit one of the 'minor' titles herself, which would only be passed on to her son upon her death.

One problem with moving it to England might be that almost all English dukes are Royal Dukes now. Most of the other English dukedoms have fallen into disuse, their lines being extinguished.