Inheritance Rights of Children Born Outside Wedlock in Nigeria – Legal Guide for Parents
Introduction
In Nigeria, family and inheritance issues are deeply rooted in cultural traditions, religious beliefs, and statutory law. One of the most sensitive yet legally significant concerns in modern Nigerian society is the inheritance rights of children born outside wedlock—commonly referred to as children born out of marriage or “illegitimate” children. While outdated legal and societal views have historically discriminated against such children, progressive interpretations of Nigerian law and judicial pronouncements have continued to assert and protect their rights.
This comprehensive legal guide provides a detailed explanation of the inheritance rights of children born outside wedlock in Nigeria. It draws upon constitutional provisions, statutory law, customary law, judicial precedents, and religious norms to help parents, guardians, legal practitioners, and the general public understand the current legal position and how to protect these children’s rights.
Understanding the Concept of Legitimacy and Illegitimacy
Traditionally, a legitimate child is one born during a valid marriage between the parents. Conversely, a child born outside of a legally recognized marriage is often referred to as illegitimate. However, such classifications are increasingly seen as outdated and discriminatory.
In Nigeria today, the emphasis is shifting towards the rights of the child as a human being rather than their birth status. The Constitution, which is the supreme law, guarantees equality and freedom from discrimination for all citizens, including children born outside wedlock.
Legal Framework Governing Inheritance in Nigeria
Nigeria operates a plural legal system consisting of:
Statutory law (e.g., Administration of Estates Law, Wills Act)
Customary law (based on ethnic traditions)
Islamic (Sharia) law (applicable in northern states for Muslims)
Judicial decisions (case law)
These systems often conflict, especially regarding inheritance. For children born outside marriage, the applicable legal system plays a critical role in determining their inheritance rights.
1. Statutory Law and Constitutional Provisions
Under statutory law, particularly the Administration of Estates Law of Lagos State and similar laws in other states, there is no distinction between children born in and out of wedlock. Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states:
“No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
This constitutional provision has been upheld in various court decisions, confirming that all children—regardless of marital status of the parents—have equal inheritance rights under statutory law.
2. Customary Law and Its Limitations
Under many Nigerian customary laws (especially among the Igbos and Yorubas), a child born out of wedlock may not be entitled to inherit property from the father unless:
The father acknowledged or accepted the child before his death
The child was legally adopted or integrated into the family
There is evidence of a marriage ceremony between the parents
These customary limitations have been challenged and overruled by higher courts in favor of statutory protections.
3. Islamic Law (Sharia)
In Islamic law, a child born outside of a valid Islamic marriage is not considered a legitimate heir of the father. Such a child may only inherit from the mother or through a will (up to one-third of the estate).
Islamic law is only applicable in matters involving Muslims in northern Nigerian states that have implemented Sharia law. It must be noted that in such cases, religious law supersedes statutory law due to the Constitution’s accommodation of religious freedom.
Judicial Interpretations and Landmark Cases
Several court rulings have clarified the position of children born outside wedlock in Nigeria:
Salubi v. Nwariaku (2003) 7 NWLR (Pt. 819) 426: The Court of Appeal ruled that a child born outside wedlock is entitled to benefit from the estate of the deceased father under the Administration of Estates Law.
Ukeje v. Ukeje (2014) 11 NWLR (Pt. 1418) 384: The Supreme Court declared that it is unconstitutional to discriminate against a female child (whether born in or out of wedlock) in inheritance matters.
Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373: Held that under certain customary laws, the female child may not inherit. This position has been modified by subsequent judgments.
These cases demonstrate the judiciary’s role in ensuring constitutional compliance and equality in inheritance matters.
The Role of Acknowledgment and Paternity in Inheritance Claims
For a child born out of wedlock to successfully claim inheritance from the father, they must prove:
That the deceased acknowledged paternity while alive
That the child is biologically related to the deceased
That there is written or oral evidence, family recognition, or public conduct showing acceptance
DNA testing may be used to establish biological links where there is a dispute.
Rights Under a Valid Will
A father may include a child born out of wedlock in his last will and testament, thus removing any doubt about inheritance. Such a child can be named as a beneficiary and allocated property, regardless of societal views or religious tradition.
If the will is silent or discriminatory, the affected child may still challenge the will under constitutional grounds.
Implications for Parents
For parents, especially fathers, it is essential to:
Formally acknowledge and support their children born outside marriage
Prepare a valid will that reflects their wishes and protects all children
Avoid discriminatory conduct that may be challenged in court
Consult legal professionals for proper documentation and estate planning
Rights of Mothers and Guardians
Mothers who raise children born outside wedlock must be aware that:
They may apply for letters of administration if the father dies intestate
They must prove paternity and guardianship when making inheritance claims on behalf of the child
The child can inherit from the maternal family if paternity is not established
Preventive Measures and Best Practices
Legal Documentation: Always obtain a birth certificate listing the father’s name if he consents.
DNA Tests: Where disputes are anticipated, conduct a DNA test while both parents are alive.
Family Mediation: Use alternative dispute resolution mechanisms to resolve family disputes amicably.
Estate Planning: Draft a comprehensive estate plan that recognizes and protects all children.
Statutory Instruments for Enforcing Inheritance Rights
Legal tools and processes available include:
Letters of Administration (when the deceased dies without a will)
Probate Proceedings (when there is a valid will)
Court Petitions challenging discriminatory practices or exclusion from inheritance
Applications for DNA testing during litigation
Cultural Stigma and the Need for Awareness
Despite legal protections, cultural stigma still persists against children born outside wedlock. Parents, civil society, and legal institutions must:
Promote awareness of constitutional rights
Combat cultural discrimination
Educate families and communities on the legal position
Conclusion
Children born outside wedlock in Nigeria are entitled to equal protection under the law, especially concerning inheritance rights. The Constitution, statutory laws, and progressive court decisions continue to uphold this principle, notwithstanding opposing customary or religious views.
Parents and guardians must be proactive in safeguarding the rights of these children by seeking legal advice, acknowledging paternity, and engaging in proper estate planning. In doing so, they uphold not only the law but also justice and equality.
Call to Action
Are you a parent, guardian, or legal beneficiary seeking clarity on inheritance rights in Nigeria? Are you concerned about the protection of children born outside marriage?
Let Chaman Law Firm guide you through the right legal steps—whether drafting a will, establishing paternity, or filing for inheritance claims.
📞Phone: 08065553671, 08096888818
✉ Email: chamanlawfirm@gmail.com
📍 Address: 115, Obafemi Awolowo Way, Allen Junction, Ikeja, Lagos, Nigeria