Inheritance Rights of Children Born Outside Marriage

The inheritance rights of children born outside marriage in Mauritius turn on one question before any other: is the legal link between the child and the deceased parent established? Where it is, the child is generally treated as a child of the deceased for succession purposes. Where it is not, the child is, in law, a stranger to the estate, whatever the family reality.

This page is general information, not advice. Filiation rules have been reformed over time, and the outcome in a real family depends on documents, dates and evidence. Have the facts reviewed by a Mauritian legal adviser before acting.

Why the label "illegitimate child" no longer answers the question

Readers often search for "illegitimate child estate" or "natural children inheritance" and expect a rule based on the parents' marital status. Modern Mauritian succession analysis is organised differently. The decisive point is filiation: can the child show a legally established link to the parent whose estate is opened?

That link can generally arise in three ways:

• Presumption within marriage, which does not concern us here because the child was born outside it.
• Voluntary recognition by the parent, usually in the birth certificate or in a separate notarial or civil-status act.
• Judicial declaration of paternity or maternity, obtained from a court after proceedings.

A recognised child and a child whose filiation was declared by a court are, as a rule, in the same legal position. A child whose parent never recognised them, and who never obtained a judgment, has no succession claim as a child, however close the relationship was.

When is a child born outside marriage a reserved heir?

Mauritian succession law reserves a fixed share of the estate to certain close relatives, chiefly children. A parent cannot override that share by will or by gift. The general mechanics are covered on the forced heirship page and are not repeated here.

For a child born outside marriage, the practical test has three steps.

Three consequences follow.

1. A recognised child counts when the shares are calculated. The number of children determines how large the reserved portion is and how it is divided. Overlooking a recognised child distorts every other share.
2. The reserved share belongs to the child personally. It does not depend on the parent's affection, on contact between them, or on the attitude of the legitimate family.
3. An unrecognised child can still receive, but only by choice. The parent may name them in a will or as a trust beneficiary. That is a gift within the freely disposable part, not a right.

Timing: recognition before or after death

A frequent difficulty is recognition that comes late. A child may seek a judicial declaration of filiation after the parent has died, within the conditions and limitation periods the law sets. If it succeeds, the child's status can reach back to the birth, and the estate may have to be reopened or recalculated.

For the family this creates risk. Heirs who believed the estate settled may face a claim. For the parent, it is a reason to clarify the position during their lifetime rather than leave it to a dispute. How long a claim stays open is a technical point to check with an adviser; no period is stated here.

Where a trust fits

A trust is a way of holding assets for named people under written terms, with a trustee in charge. It is not a way of removing a child from the estate. For a child born outside marriage, it serves three legitimate purposes.

Giving an unrecognised child a defined benefit

If the parent wishes to provide for a child without legal filiation, a will or a trust can do so out of the freely disposable portion. A trust has the advantage that the benefit, its timing and its conditions are written down. See trust or will for how the two tools differ.

Organising the share of a recognised child

A recognised child's reserved portion cannot be reduced, but the way it is received can be structured by agreement, for example when the heirs and the child agree that part of the estate goes into a trust for the child. Staggered distributions, an age threshold or a ring-fence against creditors can then be added. A spendthrift or protective arrangement is available under Article 18 of the Trusts Act 2001, which allows a beneficiary's interest to be terminated, restricted in its transfer or suspended where the beneficiary becomes insolvent or their assets are seized.

Providing for a young child

Where the child is a minor, a trust for minor children lets the trustee manage the assets until the child is old enough, which avoids leaving an unsupervised sum to the other parent or a guardian.

The limits: a trust does not defeat reserved rights

Because the reserved portion is protected by law, a trust set up to starve a recognised child of their share is exposed. The key points:

• A Mauritian settlor cannot assume that moving assets into a trust removes them from the calculation of the reserved portion. Courts can examine transfers made to defeat the heirs. See can a trust be challenged in court and sham trusts.
• Article 8 of the Trusts Act 2001 provides that a transfer by a non-citizen settlor cannot be annulled under the succession rules of that settlor's domicile or nationality. That protection is tied to the settlor's status; it is not a general exemption for Mauritian citizens, and it does not settle how foreign courts will treat the transfer.
• The settlor's retained powers matter. The more control kept, the easier it is to argue that the assets never left the estate. How much control a settlor can keep explains the boundary.

For a parent whose wish is to exclude a child entirely, see disinheriting a child.

Comparison: three situations

Practical steps for a parent

A letter of wishes lets a settlor explain, privately and without binding the trustee, why a child is treated in a certain way. It can reduce disputes between half-siblings, though it is not a legal protection. If the family is already composed of several households, the separate page on a trust for a blended family covers that structure.

For a child who believes they are an heir

If you think you may be a child of a deceased person, the sequence is usually:

• gather proof of filiation (birth certificate, recognition act, judgment);
• ask whether the estate is open, who the notary is and what has already been distributed;
• check whether assets sit in a trust, and read how a beneficiary can request trust information;
• take advice before any step that starts a time limit.

Where the deceased left no will, the order of heirs is explained in who inherits when there is no will.