Inheritance FAQs (or, how to disinherit a duke)

I have just read a review of a British-set histrom. The hero is a duke, but he has a problem: the conditions of the title stipulate that if he isn’t married by the age of thirty, he will be stripped of the dukedom and it will pass to the next heir. Great romance set-up, right?

No. Oh God, no.

There are historical realities you can muck about with, tons of them. Have a zillion dukes by all means. Let them marry governesses and plucky flower girls, fine. These things are wildly implausible, but this is historical romance, and we’re here to play.

And then there are things that you cannot mess with, because they don’t play with the world, they break it. Chief amongst these in British aristocracy romance would be, er, destroying the entire system of British aristocracy. Which is what this plot does.

The point of a system of primogeniture—the whole, sole, single, solitary purpose of it—is to establish that nobility is bestowed by birth. The monarch can bestow a title on a commoner because of their merit on the battlefield/skill in the sack, but once it is granted, it operates under the rules. Nobody ever gets to decide who will inherit their title—not the monarch, nobody. It goes to the first in line: end of story. And once a peerage is bestowed it cannot be removed by anything less than an Act of Parliament or Royal prerogative. Certainly not by a previous holder’s whim.

If inherited titles can be given or withheld on any other basis, if you start asking “Does the holder meet basic standards?” or “But is this really the best person for the job?”, the whole system falls apart. It is infinitely better for the aristocratic system that a chinless idiot should make an absolute mess of his earldom than that the right of firstborn nobility should ever be questioned.

Hence this isn’t a matter of suspending disbelief / plot implausibility: it destroys the entire house of cards. Allow me to quote GK Chesterton:

Tell me that the great Mr Gladstone, in his last hours, was haunted by the ghost of Parnell, and I will be agnostic about it. But tell me that Mr Gladstone, when first presented to Queen Victoria, wore his hat in her drawing-room and slapped her on the back and offered her a cigar, and I am not agnostic at all. That is not impossible; it’s only incredible. But I’m much more certain it didn’t happen than that Parnell’s ghost didn’t appear; because it violates the laws of the world I do understand.

A duke marrying a lowly chimney-sweep’s daughter is merely implausible. But a duke whose title can be removed if he doesn’t meet a certain standard of behaviour, or a nobleman who can disinherit his older son and bestow the title on his second? That violates the laws of the aristocratic primogeniture-based world you’re writing in.

Some readers won’t notice of course. But many, even those who aren’t versed in the specifics of those laws, will pick up that you neither know nor care to know about the world you’re writing. And that does rather raise the question, why bother?

***

Herewith some Inheritance FAQs for UK historical romance authors.  See this other incredibly long post for more on getting titles right.

Can my bastard hero (the illegitimate kind of bastard) inherit his father’s title?

Not in England, possibly in Scotland.

A bastard (born outside wedlock) cannot inherit his father’s title or any property entailed to it. He could be raised to the peerage, i.e. given his own title, by the monarch, but he can’t inherit one because that would break the system of primogeniture. A title could fall into abeyance (stand vacant while waiting for someone to claim it) and potentially then be awarded to the bastard son by the monarch, but it would not be in his father’s power to leave it in his will.

In England a bastard cannot be legitimised by the marriage of his parents unless your book is set after 1926, when the law was changed to retroactively legitimise children if their parents married (as long as neither parent was married to someone else at the time of the birth). The legitimised son of a peer is not entitled to inherit the peerage, though he would be able to use a courtesy title if one was available.

However, if a Scottish bastard hero’s parents married as above, he would be legitimised and able to inherit the title, as that has been Scottish law for ages.

Can my hero renounce his title? Can he nobly give it to his cousin instead?

Not before 1963 but see below, and he can’t ‘give’ it to anyone.

When a peer dies, his heir claims the title by making a petition to the Crown, giving his claim in detail. The heir can use the title while waiting for the formal approval to be granted (start calling himself Earl of Bingley) but it’s not actually his until it’s granted. Hence you could have two rival claimants walking around London both calling themselves Lord Bingley, to everyone’s embarrassment.

The petition is reviewed and, if straightforward, presented to the monarch for rubber-stamping. However, if there are complications, the petition goes to the Committee for Privileges. While this is happening, anyone else who believes they have a claim can petition the House of Lords to have it heard.

Let us say the time and place of Lord Bingley’s marriage to his housemaid are shrouded in mystery, but they lived as a married couple and have an acknowledged son, John. When Lord Bingley dies John petitions the Crown for the title. He can’t give details of his parents’ marriage, so the petition is referred to the Committee for Privileges. Meanwhile his cousin Peter comes forward to claim that Lord Bingley wasn’t legally married and that the title should instead come to him. The whole thing then gets thrashed out in the Lords, whose decision is final.

If John doubts his own claim to the title but has no proof either way, he can decline to make a petition to the Crown, and then the title would simply lie in abeyance until his death, at which point Peter could petition for it. Or if the title has been granted to John already, he can refuse to use it and call himself Mr. But while John lives, the only way for Peter or anyone else to be Lord Bingley would be for John to be conclusively proven illegitimate before the title was granted.

The only way you can mess around with renouncing a title is with an heir who isn’t generally known to exist. Let’s say Lord March was a bigamist, has a son Terence by his first marriage who lives quietly in a village, but as far as the world is concerned, his son James by the second, bigamous marriage is his heir. While this remains secret, James and Terence can decide between themselves if Terence is going to lie low or if James is going to nobly declare himself illegitimate–or indeed knowingly lie to the House of Lords to claim the title. But this entirely depends on Terence’s identity remaining a secret. If it becomes known to the Committee of Privileges, only Terence will be awarded the title, and John is out whatever happens.

NB: It was not possible for a peer to disclaim his title until 1963 when the law was changed. A disclaimed title lies unused until the former holder dies and then inheritance operates as normal.

Can my heroine inherit a title of her own?

Depends.

English titles usually descend down the direct male line. For many titles it is specified that the title passes to “the heirs male of [the holder’s] body”, i.e. legitimate sons only. If you run out of legitimate sons, the title goes into abeyance.

However, some titles are deliberately created with a special remainder allowing it to pass to women/down the female line. Many more Scottish titles than English are created this way. And lots of the older English titles descend in fee simple, meaning the title can go to a female heir, or to other relatives if the line of descent has died out, without going into abeyance. These are almost all baronies or earldoms. Where an English title is in fee simple, sons have precedence over daughters.

Take the earldom of Polkington. The earl is called Alan, and has children Lady Bertha, Charles and David, in that order. Alan’s younger brother is Eric.

In the heirs male system, Charles is heir, with David next in line. If both of them die the title falls into abeyance. Eric can then petition to inherit as the only surviving son of the last-but-one Earl; Bertha is out.

However, if the earldom is held in fee simple, the order of inheritance would be: Charles, David, Bertha, Eric. So if you want a heroine to have a title in her own right, there you go.

NB that if Bertha becomes Countess of Polkington in her own right, her husband John Smith does not become Earl of Polkington or get any courtesy title. He remains Mr Smith unless given a title of his own. (He might well take her surname under these circumstances so their children would have the earldom’s family name.) If Bertha’s husband was Sir John Smith, he keeps his title of Sir. If Bertha, Countess of Polkington marries the Marquess of Mandrake, she will probably style herself Marchioness of Mandrake because it’s higher status.

My hero’s mother was playing away and he isn’t the duke’s biological son—can the villain threaten to disinherit him with this knowledge?

No.  

It is not easy to disinherit the heir to a peerage (because primogeniture). If Lord and Lady Welford are married, Lady Welford’s eldest son is the legitimate heir to the marquessate and entailed property, even if he bears a striking resemblance to Lady Welford’s lover. Lord Welford’s heir could potentially be disinherited if it could be proved beyond doubt that Lord Welford could not have had sex with his wife for a goodly period around the time of conception—but that would be “could not” as in “she was in England, he was in China”, not just a claim that they weren’t sharing a bed at the time. (For once, the man’s word on the matter doesn’t carry all the weight! Woop!)

Moreover, Lord Welford would need to repudiate the child from the first and stick to that decision. He can’t come back from China, forgive his erring wife, bring up the boy with his name, then change his mind in five years’ time. And even then the case would have to be thrashed out in the Committee of Privileges.

Can my hero be stripped of his peerage if he fails to fulfil the terms of a will, or removed from the line of succession by his irate father because of his rakish ways?

Literally, and I cannot state this clearly enough, no.

The irate father can leave unentailed property/money elsewhere, but titles are not in anyone’s gift. The legitimate firstborn son will inherit the title. Peerages can only be granted along the line of succession and, once granted, can only be removed by an act of Parliament. This virtually never happens, and only for things like treason, which tend to come with other (terminal) consequences. Once the title is formally granted, that’s it.

This is the case even if there is an obvious error. Suppose Lord Manders has an eldest son Roger who died abroad, and a second son James. James will need to provide proof that Roger is dead in order to inherit the title, and if he can’t, it will not be granted. If it is granted, and then Roger turns up a few years later explaining it was all an amusing misunderstanding, James can’t just renounce the title of Lord Manders and let Roger have it.

But I really want my elderly duke to force his handsome son, nephew, and bastard to compete over who will inherit the dukedom!

Tough shit. They’ll just have to fight over money like everyone else.


Talking of bastard dukes, my latest release is Any Old Diamonds, in which Victorian jewel thieves collide with degenerate aristocracy.

23 replies
  1. D Franklin
    D Franklin says:

    One note – since 1963, it has been possible to give up a peerage, even once it has been bestowed, thanks to Tony Benn. Although I guess most duke based romances are set before that.

    Reply
  2. WS
    WS says:

    Thank you so much. In utter and complete farce, I am willing to tolerate pretty much anything. In anything else, I demand some sort of actual knowledge of the world that the author is writing in. I’ve been going nuts about titles recently.

    Reply
  3. NP-Complete
    NP-Complete says:

    Thank you for doing all this work! I agree — obvious errors of that sort are MADDENING.

    (Perhaps they’re confusing peerage with monarchy? I seem to recall that Henry VIII set his children’s succession, putting Mary ahead of Elizabeth, even though by his own account Mary was illegitimate. It would be easy — though, false — to reason that what applied to kings must apply to dukes!)

    I had always understood that the 1926 Marriage and Legitimacy Act didn’t apply to the passage of titles or the estates associated with them: those still passed to the next legitimate (as opposed to legitimated) heir. I got this idea from the 1951 Georgette Heyer mystery, “Duplicate Death”, which turned on a blackmailer discovering that a certain lord had been born 2 weeks prior to his parents’ marriage.

    Heyer — or her copy editors? — certainly made occasional mistakes. And, I am not myself a student of English law. So I don’t know if this is true, or was changed by subsequent Acts.

    Reply
    • KJ Charles
      KJ Charles says:

      You’re quite right, will make that clear. An English peer’s son legitimated under the 1926 Act became, effectively, a younger son, entitled to a courtesy title if applicable but not to inherit the peerage. Scots legitimated children can inherit peerages.

      Reply
  4. Sarah Drew
    Sarah Drew says:

    Interesting that, in your example of the unfortunate Earls of Polkington, Alan’s brother doesn’t automatically inherit the title. Thanks for that point: I hadn’t appreciated there had to be such a distinct legal step.

    A tiny aside – if Mr Smith comes into a title from a remote relative (say he was the grandson of a second son of the Duke of Dunstable), he can petition for his brothers and sisters to be granted the honorific titles of Lord Francis Smith, Lady Grace Smith (and they won’t be called that unless he *does* petition). What he can’t do is acquire the title of Dowager Duchess for his mother, who will remain Mrs Smith, mother of the Duke of Dunstable.

    Reply
  5. ULTRAGOTHA
    ULTRAGOTHA says:

    So if John is confirmed as Lord Bingly and then cousin Peter comes forward with rock hard evidence that John was illegitimate, it’s too late to change things?

    Would that mean that Peter, or Peter’s eldest son, could try again when John dies? Or is John’s legitimate eldest son next in line no matter what?

    Reply
    • KJ Charles
      KJ Charles says:

      As I understand it, once John has been granted the title, that’s it, and his children keep it. It’s a bestowal of honours from the monarch, which trumps pretty much everything. Plus, let’s face it, plenty of honours descended to people who weren’t their father’s son. Once you start messing around with making titles easily removable, the system is endangered, therefore they don’t.

      Reply
  6. Elin
    Elin says:

    I’m a bit hazy on the details, because it’s a couple of decades since I read up on it, but our local earldom had to go to Parliament in the early 20th c because the only remaining son was in a mental hospital, poor chap, completely unable to look after himself, let alone marry and father children. Despite everything he was still the heir. It took years to sort out.

    Reply
  7. John
    John says:

    I seem to recall that bastards could also inherit under Welsh law until it was overwritten by English law. I’m not positive though. So period and area may be a factor for earlier historicals.

    Reply
  8. Lisa
    Lisa says:

    I wish I could make this required reading for my fellow (US) Americans who are writing stories around the peerage, with an addendum on how peers are addressed.

    Reply
  9. Tricia
    Tricia says:

    This is the best explanation of primogeniture I’ve ever read. Thank you? What happens in the case of twins? What if the eldest is presumed dead? Does the second inherit? And what happens if he does return? How did this work during the Restoration? Charles threw lots of titles around.

    Reply
    • KJ Charles
      KJ Charles says:

      The eldest twin gets it. The second will inherit only if the death can be proven to the Committee of Privileges’ satisfaction, and is irrevocable: if the first turns up he’d probably be given another title (this has happened in the case of insoluble problems before!)

      Reply
  10. Lissa
    Lissa says:

    What about waiting to see if the wife is pregnant after the title holder dies? Once read a book that said she has 12 months to give birth, which makes no sense. How do entailed property work? Read a book that implies the entailment has to be renewed by currant title holder or it became unentailes. And this isn’t really related, but I was arguing with my 16 ye old- who hands out new title now- monarchy or parliament? Are there many new titles being handed out to artist, etc? I say not, but son says House of Lords policial positions are changing because it is?

    Reply
    • KJ Charles
      KJ Charles says:

      I can’t answer most of this off the top, but the monarch is the person who hands out titles–these days on the recommendation of Govt. The Lords is more packed with political appointees than artists.

      Reply
    • Caz
      Caz says:

      I think the delay after a peer died leaving a wife of child-bearing age was to allow for time to establish if she was a) pregnant (in the days pre-shop-bought pregnancy tests!) and then for the child to be born (given infant mortality rates, there was a chance the pregnancy wouldn’t go to term.) So yes, 12 months is a long time – I’m not sure where that comes from.

      Reply
    • Lizzie
      Lizzie says:

      Lissa, my vague recollection from my (U.S.) property law class is that classic entailments back in like the 1500s went on forever without having to be renewed and were difficult to break. In the 18th century or thereabouts, in response to changes in laws that made entails a lot easier to break, rich people started using a sort of jumpfrog system of life estates called “strict settlement,” where a father and son would work together to re-structure the entail under certain circumstances, and then, later, the son and his own son would do the same. These did have to be renewed.

      Reply
  11. Kaetrin
    Kaetrin says:

    This is the case even if there is an obvious error. Suppose Lord Manders has an eldest son Roger who died abroad, and a second son James. James will need to provide proof that Roger is dead in order to inherit the title, and if he can’t, it will not be granted. If it is granted, and then Roger turns up a few years later explaining it was all an amusing misunderstanding, James can’t just renounce the title of Lord Manders and let Roger have it.

    So in the above example, what would happen to Roger?

    (Also, thank you for this post. It’s fascinating!)

    Reply
    • KJ Charles
      KJ Charles says:

      Well, first, it would be pretty unlikely to happen–so unlikely that I couldn’t find any cases at all where it has happened! However, if it did, it’s possible that Roger would be created Lord Raffles in order to fix the injustice. There have been cases where two claimants have had equally good claims to a title, and it was resolved by creating a new title for one of them.

      Reply
  12. Lynne Connolly
    Lynne Connolly says:

    The thing is, most novels these days are written in deep third person or first person, so there is nobody between the reader and the character. No narrator. So the people in this world would know. They just did. They didn’t have to learn it, because they’d grown up with that reality, so getting it wrong makes everything not work. We don’t believe in the characters any more, because they don’t even know how to address each other, or behave in a formal situation.
    I wrote a book where the hero, a younger son, gets a title through his wife – but the title was her father’s, and he had just done something singularly brave for his country. So he was awarded her father’s title, which was in abeyance. That did happen, but it was far from automatic. The crown office had to be petitioned, and even then they might not do it. In that case the hero would be the first earl (duke, viscount, marquess) of the second creation. They wouldn’t carry on numbering.

    Reply

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