SUCCESSION RIGHTS IN CASE OF LIVE-IN RELATIONSHIPS: AN ANALYSIS IN

THE INDIAN CONTEXT

AMARTYA BAG *
Live-in relationship is one of the areas which is under criticism and highly debated in India
regarding its legality and implication on the societal relationships. Long term cohabitation
between two major man and woman has long been equated to a valid marriage. While the
year 2010 saw a number of judgments related to live-in relationships, which includes, clear
declaration by the Supreme Court that a live-in relationship is not illegal and grant of
maintenance to a woman in live-in relationship. The article seeks to clarify the current legal
status of live-in relationship in India. The article also tries to look into recent developments
in the attitude of the Courts in granting various rights to live-in partners in India, and
analysis of such judgments and also makes a comparative analysis of the trend in other legal
systems and jurisdictions. The article also tries to identify the need of a proper legal
framework for securing the succession rights of live-in partners in India, especially in case of
intestate succession. The article concludes that there is a need of a special statutory
legislation, which could be drafted following the Waggoner model, which was suggested by
Professor Waggoner in his seminal work on the subject, and as modified by the
recommendation by Spitko, along with a hybrid model to include optional registration
process to bring about more clarity regarding the legal position of such inheritance right of
such live-in partners and clearly laying down the rights and liabilities of each party.

“With changing social norms of legitimacy in every society, including ours,

what was illegitimate in the past may be legitimate today.” – Hon’ble Justice

A.K. Ganguly in Revanasiddappa v. Mallikarjun1

INTRODUCTION

Right to property is one of the most important rights of a human being. The property may be

acquired by an individual or it can be inherited by one from his or her predecessors and

partners. The recent trend of the attitude of the Courts in case of succession rights of live-in

relationships in India, shows a huge change towards the notion of the institution of marriage.

                                                            
* Amartya Bag is a 4th Year Student of KIIT Law School, KIIT University, Bhubaneswar. He can be reached at
abag.kls@gmail.com
1
2011 (2) UJ 1342 (SC).

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The Supreme Court has not only pronounced that live-in relationship is not illegal, but has

gone to the extent of declaring that the child born out of a live-in relationship is legitimate

children and has the right to inherit property.2 In Marvin v. Marvin3, the California Supreme

Court held that in the absence of marriage, the parties could seek enforcement of the

expressed contract between them so long as there was adequate consideration. In the event

there is no express contract, the court should evaluate the facts of the case to determine

whether an implied contract or agreement existed to provide relief through the equitable

doctrines of quantum meruit or constructive trust.4 There is no reason why the decision in

Marvin’s case cannot be applied in the Indian context.

This article seeks to analyse the recent developments in the attitude of the Courts in cases of

succession rights of live-in partners5 in India, the legality of such judgments and also makes a

comparative analysis of the trend in other legal systems and jurisdictions. Intestacy is an area

in which live-in couples receive little legal protection of their relationships. For a surviving

partner, this can result in complete disinheritance and defeat the intentions of the couple. The

article also seeks to identify the current ways in which live-in partners can get succession

rights. The article also analyses the need of laws to protect the interests of live-in partners and

makes certain suggestions as to the possible solutions to remove the ambiguities in the law. In

this context, it is essential to analyse the current law, judgments and validity of such law.

This article also aims to make a comparative analysis of the trend in other jurisdictions, the

need of change in the current law if any.

                                                            
2
Bharata Matha v. R. Vijaya Renganathan C.A. No. 7108/2003 MANU/SC/0400/2010, (S.C. May 17, 2010).
3
18 Cal.3d 660 (1976).
4
Id. at 684.
5
The term live-in partners and domestic partners has been used interchangeably to mean two consenting adults
of the opposite sex living together like a married couple without any actual marriage between them, except
otherwise the context means something else.

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 I. LIVE-IN RELATIONSHIP AND THE INDIAN JUDICIARY

Live-in relationship in India is often seen as a taboo and a sin. However, it is not very

uncommon to find people in big metros staying together as husband-wife without any

marriage. None of the statutes dealing with succession or marriage such as the Hindu

Marriage Act, 1955, the Special Marriage Act, 1954 or the Indian Succession Act, 1925

recognise live-in relationship directly. Under the Hindu Marriage Act, children born out of

such relationships are considered to be legitimate and have been granted the right to

succession.6 However, Protection of Women from Domestic Violence Act, 2005 recognises

the right of protection of a person in “relationship in the nature of marriage” from domestic

violence and can get monetary and other reliefs under the Act.7 Section 2 (f) of the Domestic

Violence Act defines "domestic relationship" as “a relationship between two persons who

live or have at any point of time lived together in a shared household, where they are related

by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or

are family members living together as a joint family.” Inspite of no clear and specific legal

sanction, there has been a huge societal change in the attitude towards live-in relationships,

the multinational companies providing health insurance benefits to domestic partner of the

employees.8

However, living together has been long considered to be presumption of marriage until some

facts prove it to be otherwise under Section 114 of Evidence Act. In, A. Dinohamy v. W.L.

Blahamy9, the Privy Council laid down the general proposition that; “where a man and

                                                            
6
Section 16 of Hindu Marriage Act, No. 25 of 1955, INDIA CODE.
7
See, Sections 2(a), 12 read with Sections 18, 19, 20, 21 and 22.
2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time,
lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship
in the nature of marriage, adoption or are family members living together as a joint family.
8
Devina Sengupta, Now gift your live-in partner a mediclaim, Economic Times, Nov. 3, 2011, available at
http://articles.economictimes.indiatimes.com/2011-11-03/news/30354890_1_indian-firms-health-insurance-
sudhir-sarnobat.
9
AIR 1927 P.C. 185.

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woman are proved to have lived together as man and wife, the law will presume, unless, the

contrary be clearly proved that they were living together in consequence of a valid marriage,

and not in a state of concubinage.”10 In Mohabhat Ali v. Md. Ibrahim Khan11, the Privy

Council held that, “the law presumes in favour of marriage and against concubinage when a

man and woman have cohabited continuously for number of years.”12

The Supreme Court stated in a case where a man and a woman lived together for around 50

years that, there would be strong presumption in favour of wedlock. The Court however

added that, “the presumption was rebuttable, but a heavy burden lies on the person who seeks

to deprive the relationship of legal origin to prove that no marriage took place. Law leans in

favour of legitimacy and frowns upon bastardy.”13

The Supreme Court in Gokal Chand v. Parvin Kumari14 observed that continuous co-

habitation of woman as husband and wife and their treatment as such for a number of years

may raise the presumption of marriage, but the presumption which may be drawn from long

co-habitation is rebuttable and if there are circumstances which weaken and destroy that

presumption, the Court cannot ignore them.15

In the judgments before 2000 there is hardly any case where the Courts have used the word

“live-in relationship” to clarify the legal status of a domestic partner or in any other such

connections. In 2001, the Allahabad High Court held that a major man and woman can stay

together without getting married if they want and this is not illegal.16

                                                            
10
Id. at 187.
11
AIR 1929 PC 135.
12
Id. at 138.
13
Badri Prasad v. Dy. Director of Consolidation AIR 1978 SC 1557, 1557.
14
AIR 1952 SC 231.
15
Id. at 333.
16
Payal Sharma v. Superintendent, Nari Niketan, Agra, C.M. Hab. Corp. W.P. No. 16876/2001
MANU/UP/0288/2001 (All. H.C. May 17, 2001).

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The Supreme Court in the case of Vidyadhari v. Sukhrana Bai17, issued a Succession

Certificate to the live-in partner, who was nominated by the deceased.18 In, Abhijit Bhikaseth

Auti v. State of Maharashtra, the Bombay High Court observed that it is not necessary for a

woman to strictly establish the marriage, to claim maintenance under section 125 of Cr.P.C.19

In, Koppisetti Subbharao Subramaniam v. State of A.P.20, the Supreme Court extended the

protection against dowry under Section 498 A of the Indian Penal Code so as to “to cover a

person who enters into marital relationship and under the colour of such proclaimed or

feigned status of husband” and resort to cruelty or torture to the women.21 This case has

extended the protection of women from dowry even when they are in a live-in relationship. In

Tulsa v. Durghatiya22, the Supreme Court re-recognised the rule that there would be a

presumption of marriage when there has been long cohabitation.23

The year 2010 was a significant year in the legal sphere related to live-in relationships, with

the judiciary in both the Supreme Court and the High Courts delivering numerous decisions

on the legal status of live-in relationships. In S. Khushboo v. Kanniammal24, the Supreme

Court, placing reliance upon its earlier decision in Lata Singh v. State of U.P.25, held that a

live-in relationship is permissible only in unmarried major persons of heterogeneous sex and

is not a criminal offence under any law.26 The Supreme Court in the case of Vidyadhari v.

Sukhrana Bai27, issued Succession Certificate to the live-in partner, who was nominated by

the deceased.28The Supreme Court on 13 August, 2010 in the case of Madan Mohan Singh v.

                                                            
17
C.A. No. 575/2008 MANU/SC/0629/2008, (S.C. Jan. 22, 2008).
18
Id. ¶9-10.
19
Crl. W.P. No. 2218/2007 MANU/MH/1432/2008 (Bom. H.C. Sept. 16, 2009).
20
Crl. Appl. No. 867/2009 MANU/SC/0689/2009 (S.C. Sept. 24, 2009).
21
Id. ¶17.
22
Civil Appeal No. 648/2002 MANU/SC/0424/2008 (S.C. Jan. 15, 2008).
23
Id. ¶15.
24
Crl. App. 913/2010 MANU/SC/0310/2010, (S.C. Apr. 28, 2010).
25
AIR 2006 SC 2522.
26
Khusboo, 2010 MANU/SC/0310/2010, ¶21.
27
C.A. No. 575/2008 MANU/SC/0629/2008, (S.C. Jan. 22, 2008).
28
Id. ¶9-10.

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Rajni Kant29 has once again entered the debate on legality of the live-in relationship as well

as legitimacy of a child born out of such relationship. The Court while dismissing the appeal

in the property dispute held that there is a presumption of marriage between those who are in

live-in relationship for a long time and this cannot be termed as 'walking-in and walking-out'

relationship.30 In the case of Bharata Matha v. R. Vijaya Renganathan31 dealing with the

legitimacy of child born out of a live-in relationship and his succession of property rights, the

Supreme Court held that such a child may be allowed to succeed inheritance in the property

of the parents, if any, but doesn't have any claim as against Hindu ancestral coparcenary

property.32

However, in another case, Revanasiddappa v. Mallikarjun33, the Supreme Court observed

that taking into consideration the current social circumstances, it is necessary that the

amended Section 16 (3) of the Hindu Marriage Act must be interpreted to give right of

inheritance to an illegitimate child to the ancestry property.34

The Delhi High Court in its decision on 10 August 2010, in Alok Kumar v. State35 while

dealing with the validity of live-in relationship observed that, "‘Live-in relationship’ is a

walk-in and walk-out relationship. There are no strings attached to this relationship, neither

this relationship creates any legal bond between the parties. It is a contract of living together

which is renewed every day by the parties and can be terminated by either of the parties

without consent of the other party and one party can walk out at will at any time."36 Further,

                                                            
29
C.A. No. 6466/ 2004 MANU/SC/0596/2010, (S.C. Aug. 13, 2010).
30
Id. ¶19-22.
31
C.A. No. 7108/2003 MANU/SC/0400/2010, (S.C. May 17, 2010).
32
Id. ¶28.
33
2011(2)UJ1342(SC).
34
Id. at 1350.
35
Crl. M.C. No. 299/2009 MANU/DE/2069/2010, (Del. H.C. Aug. 9, 2010).
36
Id. ¶6.

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the persons entering into such relationships are debarred from complaining of infidelity or

immorality of the other partner.37

In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha38, the Supreme Court

observed that “in those cases where a man, who lived with a woman for a long time and even

though they may not have undergone legal necessities of a valid marriage, should be made

liable to pay the woman maintenance if he deserts her. The man should not be allowed to

benefit from the legal loopholes by enjoying the advantages of a de facto marriage without

undertaking the duties and obligations.”39 Court also wanted to interpret the meaning of

“wife” broadly under Section 125 of Cr.Pc. for claim of maintenance, so that even women in

live-in relationship can claim maintenance.40 The Court further declared that a woman in a

live-in relationship in entitled to claim any relief mentioned under Protection of Women from

Domestic Violence Act, 2005.41

The Supreme Court in the case of D. Velusamy v. D. Patchaiammal42 held that, a

‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the following

criteria: (a) The couple must hold themselves out to society as if they are spouses, (b) They

must be of legal age to marry, (c) They must be otherwise qualified to enter into a legal

marriage, including being unmarried and (d) They must have voluntarily cohabited and held

themselves out to the world as being akin to spouses for a significant period of time, and in

addition the parties must have lived together in a ‘shared household’ as defined in Section

2(s) of the Act.43 The Court further clarified that, “merely spending weekends together or a

                                                            
37
Id. ¶6.
38
SLP (Civil) No. 15071/2009 MANU/SC/0807/2010, (S.C. Oct. 7, 2010).
39
Id. ¶26.
40
Id. ¶44.
41
Id. ¶42.
42
Crl. Appl. No. 2028-2029/2010 MANU/SC/0872/2010, (S.C. Oct. 21, 2010).
43
Id. ¶33.

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one night stand would not make it a ‘domestic relationship’.”44 It also held that “if a man has

a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a

servant it would not, in our opinion, be a ‘relationship in the nature of marriage’”.45

The executive is not far away from taking reformative stance. The Malimath Committee

Report suggested that the meaning of “wife” within Section 125 of the CRPC need to be

amended “so as to include a woman who was living with the man as his wife for a reasonably

long period, during the subsistence of the first marriage.”46 Later, in October 2008, the

Government of Maharashtra accepted the proposal of Malimath Committee Report.47

II. LIVE-IN RELATIONSHIP AND LEGAL ISSUES – AN ANALYSIS

Though there have been a few recent judgments regarding live-In relationships as

discussed above, there are few issues which have not been addressed or not adequately

addressed.

One of the main concerns which remain unclear is what length of time of cohabitation

will enable the person to be qualified as domestic partner. While a casual “walk-in walk-out”

relationship cannot qualify a partner for succession rights, long time-period of continuous

cohabitation has been accepted as a marker for grant of successful succession or maintenance

rights.48 It is necessary to statutorily make a fixed time or make differentiation between a

“walk-in walk-out live-in relationship” and a live-in relationship which will make a person

qualify for a succession rights. Another intertwined issue is the question of “proof of

                                                            
44
Id. ¶33.
45
Id. ¶34
46
Ministry Of Home Affairs, Government Of India, Committee On Reforms Of Criminal Justice System 189
(2003), available at
http://www.mumbaipolice.org/%5Carchives_report%5Cmalimath%20committee%20report.pdf (last visited
Mar. 24, 2011).
47
Maharashtra to legalise live-in relationships, Times of India (Oct. 09, 2008), available at
http://articles.timesofindia.indiatimes.com/2008-10-09/india/27891716_1_crpc-live-in-relationships-amendment
(last visited Mar. 24, 2011).
48
See infra discussion Part II.

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continuous cohabitation like married couple”. It is essential that the party represents

themselves like married couples to the society and there has been social recognition to that

effect.49 The Courts have specifically mentioned any negative evidence regarding the period

of continuous cohabitation can weaken the case.50

Another question which is under debate is that live-in relationship promotes bigamy. The

Court have addressed that a person needs to be unmarried to be granted maintenance rights.51

Contrastingly, the Court has also held that in live-in relationship, there can be no complain of

infidelity or immorality.52 However, it is not clear, if bigamy is allowed under the person’s

religion whether such claims can be sustained. Another contrasting problem, is that person

who is deserted remains helpless in such cases where the persons lived into a bigamous

relationship and the courts considers unmarried status to be one of the condition for granting

maintenance. In such cases, the deserters go scot free, due to the loop-holes present in the

law. According to the author, in case of long period of cohabitation, where the couples

represent themselves as a married couple, there can be an exception in providing maintenance

rights and grounds of the person to be unmarried will be considered as an exception. It is

necessary to take a proper stand and differentiation should be made between the rights and

liabilities that are in bigamous live-in relationships.

The law of succession depends on the religion of the deceased person. However, there

may be confusion regarding the rights of children born out of inter-religious live-in

relationships. These concerns need to be addressed by a proper mechanism.

                                                            
49
See D. Velusamy v. D. Patchaiammal, Crl. Appl. No. 2028-2029/2010 MANU/SC/0872/2010, (S.C. Oct. 21,
2010).
50
See Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, at 233.
51
See Velusamy, 2010 MANU/SC/0872/2010.
52
See Alok Kumar v. State, Crl. M.C. No. 299/2009 MANU/DE/2069/2010, (Del. H.C. Aug. 9, 2010).

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 III. TOWARDS A LEGAL FRAMEWORK IN RECOGNISING RIGHT TO INHERITANCE IN

LIVE-IN RELATIONSHIP

The legal position regarding succession rights in live-in relationship is quite unclear. It is

necessary that there should be a proper legal framework to remove the confusions and the

ambiguities in the current law.

However, it would be interesting to note that Indian Courts are showing a trend of trying to

apply or observe if the concept of “palimony” which arises out of the famous case of Marvin

v. Marvin53 in California Supreme Court can be applied in India as well.54

In Marvin v. Marvin, the plaintiff and the defendant stayed together without getting married

and agreed to share their efforts and earnings together. The Court held that: “(1) The

provisions of the Family Law Act do not govern the distribution of property acquired during

a nonmarital relationship; such a relationship remains subject solely to judicial decision. (2)

The courts should enforce express contracts between nonmarital partners except to the extent

that the contract is explicitly founded on the consideration of meretricious sexual services. (3)

In the absence of an express contract, the courts should inquire into the conduct of the parties

to determine whether that conduct demonstrates an implied contract, agreement of

partnership or joint venture, or some other tacit understanding between the parties.”55

However, the position in USA is not very clear regarding the actual position. Most of the

Courts enforce such rights of palimony based on contract and not on statutes. The question

                                                            
53
18 Cal.3d 660 (1976).
54
See, Velusamy, 2010 MANU/SC/0872/2010 discussion ¶24-33; Chanmuniya, 2010 MANU/SC/0807/2010
discussion ¶ 34-37.
55
Marvin, 18 Cal.3d at 666.

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related to whether cohabitation is required as to maintain a claim of palimony, the Courts has

divergent views.56

Courts should recognise property rights of a domestic partner based on either unjust

enrichment or an express contract. The principle of unjust enrichment is based on the

equitable principle that, "A person who is unjustly enriched at the expense of another is liable

in restitution to the other."57 In Watts v. Watts58 the Supreme Court of Wisconsin held that a

domestic partner could bring a cause of action based on unjust enrichment in the absence of

an express or implied contract.59 Just like the principle of unjust enrichment is applicable on

all, it should be applied to live-in partners as well.60 However, it would be very hard to prove

the consideration where the contract was to provide certain house hold chores like cooking,

cleaning house, child-rearing, etc.61 It is very important to consider this point in the Indian

scenario, where most of the women are house makers. It is necessary that such household

chores should be considered as an important consideration for deciding case of unjustified

enrichment.

In the current legal position, a person can nominate any person in the will. The best way to

inherit property in case of live-in relationships is through a will.62 Vidyadhari’s63 case is a

                                                            
56
See, Taylor v. Fields (1986) 224 Cal. Rpr. 186 (denied the petition based on the fact that the couple meet
occasionally and there was no sign of long and stable cohabitation.); Bergen v. Wood (1993) 14 Cal.App.4th 854
(cohabitation is required for recovery under Marvin because from cohabitation flows the rendition of domestic
serevices which amount to lawful consideration for a contract.) But, Devaney v . L' Esperance 195 N.J. 247
(2008) (held that cohabitation is not necessary to claim palimony, rather "it is the promise to support, expressed
or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for
palimony."); Milian vs. De Leon (1986) 181 Cal.App.3d 1185 (Cohabitation is not a prerequisite to the finding
of an implied agreement between unmarried persons concerning their property. The only limitation upon the
right of unmarried persons to contract with respect to their property and financial arrangements is that the
contract must not be illegal or against public policy.)
57
Roberts. Summers & Robert A. Hillman, Contract And Related Obligation 112 (4th ed. 2001) (quoting DIG.
50.17.206).
58
137 Wis.2d 506 (1987).
59
Id. at 538.
60
R. Brent Drake, Status Or Contract? A Comparative Analysis Of Inheritance Rights Under Equitable
Adoption And Domestic Partnership Doctrines, 39 GA. L. REV. 675, 728 (2005).
61
Id. at 729.
62
Marissa J. Holob, Respecting Commitment: A Proposal To Prevent Legal Barriers From Obstructing The
Effectuation Of Intestate Goals, 85 CORNELL L. REV. 1492, 1511 (2000).

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good example of how a live-in partner obtained succession certificate based on the

nomination made by the deceased.

Though, the judiciary have for long presumed marriage for partners living together for long

as husband and wife. The unclear position based on facts, results in an unnecessary legal

process for claiming inheritance right. There is a need to expand the definition of family to

“include committed domestic partners”. Without recognising the inheritance right of such

partners, it would be denial of respect for donative intent of the intestate in return of concern

shown for the partner.64

However, the state should make such legislation so that the couples who are unmarried and

staying together for long can get certain social benefits like inheritance rights. The state

should support in the needs of unmarried people who resides with one with whom he or she

may or may not be in a romantic or sexual relationship.65 The status accorded to such partners

may be achieved through a registration process where they nominate each other as “domestic

partners”. Such domestic partners can get registered with equal terms and conditions.66

There is always a need of someone who would support one in the old age. Many people stay

together without marrying, such registration would make a person more secure about his

future.67 The State could provide certain social benefits like providing “family leave”, certain

benefits in case of emergency and nomination as successor to the property on mutual basis

with regards to the registration.68 The percentage of the property to be inherited by the partner

                                                                                                                                                                                         
63
Vidyadhari, MANU/SC/0629/2008.
64
Supra note 38, at 1511.
65
David L. Chambers , Unmarried Partners And The Legacy Of Marvin V. Marvin: For The Best Of Friends
And For Lovers Of All Sorts, A Status Other Than Marriage, 76 NOTRE DAME L. REV. 1347, 1355 (2001); See,
Spitko, infra note 48, at 269-70.
66
For e.g., Haw. Rev. Stat. 572C-1 to -7 (Supp. 2001). Generally, Hawaii reserves reciprocal beneficiary status
for same-sex couples and for mixed-sex couples composed of partners who are prohibited from marrying one
another by reason of consanguinity.
67
Chambers, supra note 61, at 1356.
68
Id. at 1356.

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can be mentioned in the registration form. The registration would guarantee such couples to

feel secured that someone will maintain him in the days of need.

Though the process of nomination is no doubt a good option, however it cannot be better if

such live-in partners get intestate inheritance rights like any other married couple. This can be

achieved through special separate legislation. Professor Waggoner suggested in his seminal

article mentioned about a multi-factor approach for intestate succession by “de facto

partners”.69 In his later work, he stated that “committed domestic partner” should get

automatic intestate inheritance with a smaller share than of a spouse “in recognition of the

competing claims of the decedent's blood or adoptive relatives, and to some extent to

maintain the incentive to enter into formal marriage.”70

Waggoner introduced a test consisting of five parameters for determining who is a

“committed domestic partner”.71 First, the partners must be adult. Second, the partners

                                                            
69
See, Lawrence W. Waggoner, Marital Property Rights in Transition, 59 MO. L. REV. 21 (1994).
70
See Lawrence W. Waggoner et al., Family Property Law: Cases and Materials on Wills, Trusts, and Future
Interests 107 (2d ed. 1997).
71
Waggoner's proposed amendment, entitled "Intestate Share of Committed Partner," reads:
(a) [Amount.] If an unmarried, adult decedent dies without a valid will and leaves a surviving committed
partner, the decedent's surviving committed partner is entitled to:
(1) the first [$ 50,000], plus one-half of any balance of the intestate estate if:
(i) no descendant or parent of the decedent survives the decedent; or
(ii) all of the decedent's surviving descendants are also descendants of the surviving
committed partner and there is no other descendant of the surviving committed partner who
survives the decedent;
(2) one-half of the intestate estate, in cases not covered by paragraph (1).
(b) [Committed Partner; Requirements.] To be the decedent's committed partner, the individual must, at the
decedent's death: (i) have been an unmarried adult; (ii) not have been prohibited from marrying the decedent
under the law of this state by reason of a blood relationship of the decedent; and (iii) have been sharing a
common household with the decedent in a marriage-like relationship. Only one individual can qualify as the
decedent's committed partner for purposes of this section.
(c) [Common Household.] For purposes of subsections (b) and (e), "sharing a common household" ... means that
the decedent and the individual shared the same place to live, whether or not one or both had other places to live
and whether or not one or both were physically residing somewhere else at the decedent's death ...
(d) [Marriage-like Relationship; Factors.] For purposes of subsection (b), a "marriage like relationship" is a
relationship that corresponds to the relationship between marital partners, in which two individuals have chosen
to share one another's lives in a long-term, intimate, and committed relationship of mutual caring. Although no
single factor or set of factors determines whether a relationship qualifies as marriage-like, the following factors
are among those to be considered:
(1) the purpose, duration, constancy, and degree of exclusivity of the relationship;
(2) the degree to which the parties intermingled finances ...

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otherwise cannot marry as it is prohibited due to related by blood. Third, neither partner is

married at the time of decedent's death. Fourthly, the partners must have "shared the same

place to live, whether or not [they] had other places to live." Fifthly, the two individuals must

have had a "marriage-like" relationship.

Under the multi-factor approach suggested by Waggoner, the intestate succession will be

based on various factors and requirements based on the quality of relation which will

determine the rights of such claimant.72 The Courts will then need to make subjectivity

desision of such claims based on the objective criterions made by the legislature.73 However,

the model will not make the situation clear whether the heirs will be successful in making the

claim, as the claim will be dependent on subjective decisions made by the Courts.74 The

process will be a wasteful use of the already burdened judiciary with crores of pending cases.

                                                                                                                                                                                         
(3) the degree to which the parties formalized legal obligations, intentions and responsibilities to one
another, such as by one or both naming the other as primary beneficiary of life insurance or employee
benefit plans or as agent to make health care decisions;
(4) whether the couple shared in co-parenting a child and the degree of joint care and support given the
child;
(5) whether the couple joined in a marriage or a commitment ceremony, even if the ceremony was not
of a type giving rise to a presumption under subsection (e)(3); and
(6) the degree to which the couple held themselves out to others as married or the degree to which the
couple held themselves out to others as emotionally and financially committed to one another on a
permanent basis.
(e) [Presumption.] An individual's relationship with the decedent is presumed to have been marriage-like if:
(1) during the [six] year period next preceding the decedent's death the decedent and the individual
shared a common household for periods totaling at least [five] years;
(2) the decedent or the individual registered or designated the other as his [or her] domestic partner
with and under procedures established by an organization and neither partner executed a document
terminating or purporting to terminate the registration designation;
(3) the decedent and the individual joined in a marriage or commitment ceremony conducted and
contemporaneously certified in writing by an organization; or
(4) the individual is the parent of a child of the decedent, or is or was a party to a written co-parenting
agreement with the decedent regarding a child, and if, in either case, the child lived before the age of
18 in the common household of the decedent and the individual.
(f) [Force of the Presumption.] If a presumption arises under subsection (e) because only one of the factors is
established, the presumption is rebuttable by a preponderance of the evidence. If more than one of the listed
factors is established, the presumption can only be rebutted by clear and convincing evidence.
72
E. Gary Spitko, An Accrual/Multi-Factor Approach to Intestate Inheritance Rights for Unmarried Committed
Partners, 81 OR. L. REV. 255, 260 (2002).
73
Id.
74
Id. at 260-61.

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If we make a careful analysis, we can find that the Indian Judiciary has already adopted the

test laid by Professor Waggoner in Velusamy’s case. So, it can be easily said that the Indian

judiciary is very progressive in terms of recognising new forms of social arrangements and

granting legal rights and status to it.

Professor Spitko, drafted a scheme based on four principles values for promotion of intestate

succession of committed partners. He took the following four parameters; the donative intent

of the intestate, reciprocity, reliance on the partner and easy administration process.75 He also

suggested that the percentage of the property will be depends on the duration of the

partnership. He argued that “the committed partner's entitlement to a share of her partner's

intestate estate accrues as the duration of the cohabiting partnership increases and is

discounted in relation to the duration of the period between fracture of the partnership and the

death of the intestate”.76 His objective criterions for finding out who is a “committed

domestic partner” are same as those of Professor Waggoner, except in two aspects; firstly,

Spitko recognises “the survivor of a recently-fractured partnership to take a discounted

intestate share in certain cases” while Waggoner suggested that the partner need to be

committed at the time of death.77 Secondly, he suggested a minimum cohabitation period of

three years before claiming for inheritance rights.78 He also added two objective criterions

either of which much be satisfied along with the other criterions for making a successful

claim. Firstly, during the descendant’s lifetime, both of them got registered as each other’s

domestic partner as required by the States statute and secondly, by “clear and convincing

evidence that the claimant lived her or his life together with the decedent as a couple in an

emotionally and physically intimate partnership such that the intestacy scheme should protect

the decedent's interest in donative freedom, or the surviving committed partner's reciprocity
                                                            
75
Id. at 269.
76
Id. at 290.
77
Id. at 316.
78
Id. at 316.

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or reliance interests, by awarding to the survivor a portion of the decedent's intestate

estate.”79

While both the registration and the multi-factor approach has certain defects, it can be

overcome to certain limits by following a hybrid model.80 A hybrid system can be created

wherein a registration process may be an optional requirement “but also provides inheritance

rights to a claimant who can otherwise show that a committed relationship existed between

the claimant and the decedent.”81 The author is of the opinion that if a person is registered as

domestic partners, there should be no requirement of proving whether the claimant fulfils the

multi-factor criterions or not, except for the minimum time period of cohabitation as

suggested by Spikto. The hybrid model will reduce a number of such cases where there is

some confusion regarding the intestate inheritance.82

CONCLUSION

From the series of judgments in Indian Courts and foreign cases, it is evident that live-in

partners do have a legal right to claim inheritance, only if there exists a valid relationship

within the ingredients mentioned in Velusamy Case and there exist an expressed or implied

contract between the two partners. It is just a matter of time when the legal position regarding

palimony and inheritance rights of live-in partners will be clear in India.

Historically, Indian judiciary has recognised the inheritance right in cases where there has

been long cohabitation between two partners which is akin to a marriage. Live-in relationship

is not a very new phenomenon; by whatever name it might be called, its legal status has been

recognised for long. The Courts has granted inheritance rights in such cases of long

cohabitation.
                                                            
79
Id. at 325.
80
Mary Louise Fellows, et.al., Committed Partners and Inheritance: An Empirical Study, 16 LAW & INEQ. 1, 64
(1998).
81
Id.
82
Spitko, supra note 48, at 261.

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What is needed is a special statutory legislation, which could be drafted following the

Waggoner model as modified by the recommendation by Spitko, along with a hybrid model

to include optional registration process to bring about more clarity regarding the legal

position of such inheritance right of such live-in partners and clearly laying down the rights

and liabilities of each party.

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