Eldest Child’s rights: what are they?
My father has died and his property has been divided up between my brothers and other siblings. I am the first born in wedlock therefore what claims do I have on my father’s property?
Answer: Firstborn child’s rights – Primogeniture – does it matter?
If there was a Will, then that is likely to decide the distribution, unless anyone who has a right to some form of maintenance has been left out and a claim made. There seem to be exceptions with inherited titles, which are inherited by the eldest child – as long as he is male – though more modern ones are lifetime titles which are not inheritable – but I stray for the main point.
I should pick up the point of “born in wedlock” as there is no disadvantage of being born out of wedlock in terms of entitlement under the intestacy rules – with the exception that if you are adopted elsewhere, then you no longer have an entitlement under those rules – though there may be other facts which could lead to potential rights – see below.
If there was no Will, then all natural or adopted children would share equally, eldest child or not. It is an interesting point that if any of your siblings had been adopted by another family, they would have lost all rights to your father’s estate. It is also possible for the Courts to effectively amend the Rules of Intestacy where one or more children are entitled to maintenance, but this must be through Court action.
The (eldest child) firstborn has exactly the same rights as the rest in the UK – at least as far as inheriting normal property is concerned. There has been a difference in inheritance rights in the past, but it no longer applies unless in response to instructions within the Last Will and Testament.
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First born child’s rights in more formal terms.
In England and Wales, the first-born child does not have any special rights under the law upon the death of their parents. Indeed, the legal spouse or civil partner will have priority (click through to the rules below) and in many estates, take everything. Again, some types of ownership in shares automatically pass to the survivor (but with care, as the law is frequently applied incorrectly where mere signatories to a bank account – for example – are allowed to inherit it when they may have no legal right to do so.
The law in England and Wales does not recognize the concept of primogeniture, which is the right of the firstborn child to inherit the entire estate of their deceased parents. Instead, the law (rules of) of intestacy (which applies when someone dies without having made a Will) sets out how the estate of the deceased person is to be divided between their spouse or civil partner and their children, grandchildren, and other relatives.
Under the intestacy rules, the first-born child is entitled to an equal share of their parents’ estate with their siblings. If the deceased person has a spouse or civil partner, the surviving spouse or civil partner is entitled to the bulk of the estate, and often all of it – see the Rules of Intestacy. Primogeniture – being the oldest – is not a benefit when it comes to inheriting, or indeed in dealing with the estate of a deceased parent.
However, it is important to note that these are just the general rules of intestacy. If the deceased person made a Will, their Will will override the intestacy rules and the estate will be divided in accordance with the terms of the Will. Once again, being the firstborn child gives rise to no special rights.
Therefore, it is important to ensure that you have a valid Will in place if you want to have any control over how your estate is distributed after your death.
More on the Rules of Intestacy
What can overrule the Rules of Intestacy?
In fact there are many situations where the Rules may be overridden by the Courts depending on circumstances – here are a couple of examples. Agin, it makes no difference if you are the eldest child:
- Where an individual is financially dependent on the deceased, who has habitually maintained them. (Commonly referred to as the Inheritance 1975 Act).
- Where an individual has been promised a certain inheritance in return for making a significant personal sacrifice – this is most common in businesses, often farming ones, where one child works on the farm for low wages on the promise that they will eventually inherit. The technical jargon is “proprietary estoppel.”
If you think special circumstances may give rise to additional rights, it is crucial that the issue is raised at the earliest possible moment, as otherwise it may be too late and the rights can be lost. Check out the two pages immediately below or give us a call on 03 300 102 300
More on Probate Disputes. Probate Claim Checker.