According to the Section 4 of the enactment of the Intestate Succession, the following relatives of intestate shall be treated as successors.
a. husband or wife (spouse), concubine;
b. the issue;
c. one parent or both parents;
d. the brothers and sisters of the whole blood;
e. the brothers and sisters of the half blood;
f. the grandparents;
g. the uncles and aunts.
If aforesaid people are out of existence, the residuary estate of the intestate shall belong to the Government as bona vacantia and the Government may (without prejudice to any other powers), out of the whole or any part of the property devolving on it, provide for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.
a. the definition of husband or wife (spouse), concubine
The husband or wife is the spouse of each other. The spouse is stated for a man and a woman in the valid marriage of law. The “valid marriage” determined by Hong Kong laws shall include:
(i) Registered Marriage. A marriage was or is celebrated or contracted by marriage registries, licensed places of worship and celebrants of marriages.
(ii) Modern Marriage. A marriage shall constitute a modern marriage if it was celebrated or contracted openly and witnessed by more than two persons in Hong Kong at any time before 7 October 1971.
(iii) Customary Marriage. A marriage shall constitute a customary marriage if it was celebrated or contracted in Hong Kong at any time before 7 October 1971 in accordance with Chinese law and custom.
(iv) Overseas Marriage. A marriage was or is celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed, without violating the internationally recognized principles of ‘Public Policy or Good Morals’.
Being a spouse of the intestate in the valid marriage, the surviving party shall have the right of the succession to the inheritance left by the intestate. However, there are still some exceptions, such as invalid marriage, separation, illegal cohabitation, and so on. So a concrete analysis of concrete problems shall be made dependent on specific circumstances.
Special regulations of tsip in Hong Kong
“Party to a union of concubinage" means a tsip or a male partner of such a union;
"Tsip" means the female partner of a union of concubinage;
"Union of concubinage" means a union of concubinage, entered into by a male partner and a female partner before 7 October 1971, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally.
For more detailed information, please refer to Schedule 1 of Chapter 73 Intestates’ Estates Ordinance.
b. the issue (usually refers to children of intestate, but it shall include direct descendants of the child if the intestate died later than the child)
(i) Legitimate children
A child born in wedlock is considered as a legitimate child. If the child was born before the marriage of his/her parents, he/she is still regarded as a legitimate child by law.
(ii) Posthumous heirs
Posthumous heirs are heirs conceived but not yet born when the intestate dies. In accordance with the laws in Hong Kong, posthumous heirs shall be included in the issues who have the right to inherit.
(iii) Adopted individuals
Valid adaptation in Hong Kong shall fulfill the following requirements:
<1> to apply to Hong Kong Social Welfare Department and attain an adaptation order for Hong Kong courts
<2> the adoption outside Hong Kong was legally valid according to the law of that place and that time
<3> the adoption in Hong Kong before 1st Jan 1993 in accordance with Chinese law and custom
The adopted child belongs to his/her adopters, not to his/her natural parents.
(iv) Non-marital children
A child born out of wedlock was considered as an illegitimate child. If the intestate died on or after 19th June 1993, his/her non-marital children have the same right to inherit as his/her legitimate children. If the intestate had died before 19th June 1993, the right of inheritance would be as follows:
<1> for the heritage of natural father, his non-marital children don’t have the status of his own children and the right to inherit;
<2> for the heritage of natural mother, her non-marital children have the status of her own children and the right to inherit in the case of she has not any marital child, otherwise, he/she doesn’t have.
(v) A child born by wife/tsip of the intestate
A child born by wife of the intestate has the same status and right to inherit as a child of a union of concubinage.
(vi) other special circumstances
<1> A child of the former husband who remarried
<2> A marriage before 1950 when the Marriage Law was implemented in PRC
<3> A child born by insemination or pregnancy results from medical treatment
Meaning of “mother”
Section 9 of Chapter 429 Parent and Child Ordinance in Hong Kong
Meaning of “father”
Section 10 of Chapter 429 Parent and Child Ordinance in Hong Kong
<4> Stepchildren
They have no right to inherit from their stepparents.
c. parent or both parents
(1) If the intestate is born in the wedlock, then the parties to the valid marriage are parents of the intestate, and they have the right to inherit;
(2) If the intestate is an adopted child of the valid adaptation, then the adopted parents have the right to inherit. In this case, the natural parents of the intestate are not in the position of parents and have not the right to inherit;
(3) In accordance with the Section 3(1) of Chapter 429 Parent and Child Ordinance, if an illegitimate person died on or after the commencement of the section (19 June, 1993), then his or her parents have the right to inherit if they meet some conditions. At the same time, according to the Section 3A of Chapter 73 Intestates’ Estates Ordinance, “For the purposes of the Ordinance, an illegitimate person is presumed not to have been survived by his father, or by any person related to him only through his father, unless the contrary is shown.”
d. brothers and sisters
(1) Whole-blooded brothers and sisters
If the brother and sister have the same parents, they would be related by the “whole-blood” because they share the same common ancestors. The whole-blooded brothers and sisters have the right to inherit from each other.
(2) Half-blooded brothers and sisters
Brother and sister having only one parent in common are of half-blooded and have inheritance rights. But their legal hierarchy of the inheritance right of half-blooded brother and sister is lower than that of whole-blooded brother and sister.
However, if the intestate died before the date of 3 Nov 1995, then his or her brothers and sisters only having the same mother have not the inheritance rights.
e. grandparents
The grandparents are the parents of the intestate’s parents or adopted parents. They have the right to inherit the intestate’s estate.
f. uncles and aunts
The uncles and the aunts of the intestate have the right to inherit, but their legal hierarchy is lower. In addition, they are divided into two kinds of uncles and aunts, including whole-blood and half-blood. And the legal hierarchy of the latter is lower than the former. If the intestate died before the date of 3 Nov 1995, the half-blooded uncles and aunts have not the inheritance rights.
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A. How to Determinate Range of Successors
